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RAJASTHAN HIGH COURT JODHPUR Vs. NEETU HARSH | contained in the Rules, 2010 framed in exercise of the powers conferred under Article 233 and 234 read with proviso to Article 309 of the Constitution of India, the Rule being operated will be justified. As already noted, neither the notification nor the Rule were under challenge. In terms thereof the appellants on taking note that there is no other application/applicant seeking the appointment under the category reserved for Differently Abled Persons has filled up by selecting the next meritorious candidate from the other category. Hence in a circumstance where no challenge is laid to the Rule the action to that extent would be justified. 15. That apart, though it is contended by the private respondent that it was a mistake in indicating ?No? against the Column 3.1 – ‘Person with Disability?, what is necessary to be taken note is that against Column 2.4 – ‘Category?, it has been stated as ?General?. That apart the examination fee fixed for General candidates is Rs.250/- while for the eligible disabled applicant it is fixed at Rs.50/-. The private respondent in addition to indicating her category as ‘General? has paid the fee of Rs.250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview. On this aspect, to contend that the private respondent cannot make a contrary claim, the learned senior counsel for the appellants herein has relied on the decision in the case of J&K Public Service Commission vs. Israr Ahmad (2005) 12 SCC 498 wherein it is held in para 5 as hereunder:"5. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs."16. Further the decision in the case of Registrars General, Calcutta High Court vs. Shriniwas Prasad Shah & Ors. (2013) 12 SCC 364 is relied on, wherein this Court has disallowed the claim in a case where in the application the category of reservation was indicated but certificate was not produced and the fee applicable to general candidate was paid. In addition, the learned senior counsel for the appellants herein also refers to the inherent contradictions in the claim of the private respondent apart from the fact that the claim for consideration under the category reserved for Differently Abled Persons is not made. 17. In that regard it is pointed out that even as per the disability certificate dated 05.07.2010 sought to be relied on at present, the description of permanent disability is shown as Hemiplegia – Non-functional hand. It is in that background pointed out that though that is the nature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was made belatedly the private respondent has claimed that she is visually impaired, more than 80% and the reference made is to the same disability certificate dated 05.07.2010. The learned senior counsel for the private respondent no doubt has referred to an article relating to Hemiplegia wherein reference is also made to the difficulties in seeing. The very nature of the contention would indicate that in the instant facts the claim in the application under the category should have been made and the disability certificate was required to be produced along with the application since the nature of the disability was a matter which was to be considered by the recruiting authorities concerned, if need be on medical examination. If visual impairment as a consequence of Hemiplegia was to be considered, the percentage of disability by visual impairment will also be relevant and the same was required to be determined at the appropriate stage. 18. Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. It is no doubt true that the employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debateable issues, though we could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified. | 1[ds]10. However, we do not find it necessary to advert more in detail to the said provisions since in the instant case it is not as if no reservation for Differently Abled Persons was made in the Recruitment Notification concerned nor is it a case where the Recruitment Notification is under challenge on the ground of not providing reservation. Further the decisions relied upon by the learned senior counsel for the private respondent in the case of Government of India through Secretary & Anr. vs. Rani Prakash Gupta (2010) 7 SCC 626 ; in the case of Union of India & Anr. vs. National Federation of the Blind (2013) 10 SCC 772 and in the case of Rajeev Kumar Gupta & Ors. vs. Union of India & Ors. (2016) 13 SCC 153 , wherein this Court has addressed the issues relating to backlog of vacancies, the employer having not identified the post, the duty cast on the Government and the statutory bodies as per cadre strength and the number of posts to be reserved, would not be of assistance since the very writ petition in the instant case before the High Court was not predicated on the basis that the Notification issued in the year 2016 did not make enough provisions for Differently Abled Persons. Further though the learned senior counsel for the private respondent has contended before us that enough representation was not given from the earlier years and the unfilled vacancies of the earlier year were also required to be carried forward, the same was also not the contention before the High Court nor has the private respondent herein challenged the said Notification dated 12.03.2016 on those grounds by offering herself as a candidate under the Category of Differently Abled Persons.The Rule therefore framed is under the provisions of the Constitution of India which relates to the selection of the Judicial Officers, for which the yardsticks could be laid down in the Rules. On this aspect of the matter the decision relied on by the learned senior counsel for the appellants in the case of V. Surendra Mohan vs. State of Tamil Nadu & Ors. (2019) 4 SCC 237 would be apposite. In the said case, this Court in a matter relating to the selection for the post of Civil Judge (Junior Division) to the Tamil Nadu Judicial Service was confronted with a situation whereunder the Notification prescribed the percentage of disability at 40 to 50 % for partially blind and partially deaf for selection. The candidate who had assailed the action possessed the disability certificate mentioning the disability at 70 %. Since under Section 33 of the PWD Act, 1995 no restriction on disability to the extent of 40 to 50 % can be put, the restriction on disability as per the Notification was assailed before the Madras High Court which culminated in the appeal before this Court. In that context while considering the matter, this Court had adverted to the issue as to whether the restriction on disability is in breach of the provisions of the PWD Act, 1995 and is it to be set aside. In that context, the validity of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 vis-a-vis the provisions of the PWD Act, 1995 was examined and the power under which the Rules 2007 (which is akin to the Rajasthan Rules, 2010) being framed, as empowered under the provisions of the Constitution was taken note with reference to the earlier judgments of this Court. Though the said decision is not in relation to Section 36 of the PWD Act, 1995, prima facie when it is noticed that Rule 10(4) is contained in the Rules, 2010 framed in exercise of the powers conferred under Article 233 and 234 read with proviso to Article 309 of the Constitution of India, the Rule being operated will be justified. As already noted, neither the notification nor the Rule were under challenge. In terms thereof the appellants on taking note that there is no other application/applicant seeking the appointment under the category reserved for Differently Abled Persons has filled up by selecting the next meritorious candidate from the other category. Hence in a circumstance where no challenge is laid to the Rule the action to that extent would be justified.That apart, though it is contended by the private respondent that it was a mistake in indicating ?No? against the Column 3.1 – ‘Person with Disability?, what is necessary to be taken note is that against Column 2.4 – ‘Category?, it has been stated as ?General?. That apart the examination fee fixed for General candidates is Rs.250/- while for the eligible disabled applicant it is fixed at Rs.50/-. The private respondent in addition to indicating her category as ‘General? has paid the fee of Rs.250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview.In that regard it is pointed out that even as per the disability certificate dated 05.07.2010 sought to be relied on at present, the description of permanent disability is shown as Hemiplegia – Non-functional hand. It is in that background pointed out that though that is the nature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was made belatedly the private respondent has claimed that she is visually impaired, more than 80% and the reference made is to the same disability certificate dated 05.07.2010. The learned senior counsel for the private respondent no doubt has referred to an article relating to Hemiplegia wherein reference is also made to the difficulties in seeing. The very nature of the contention would indicate that in the instant facts the claim in the application under the category should have been made and the disability certificate was required to be produced along with the application since the nature of the disability was a matter which was to be considered by the recruiting authorities concerned, if need be on medical examination. If visual impairment as a consequence of Hemiplegia was to be considered, the percentage of disability by visual impairment will also be relevant and the same was required to be determined at the appropriate stage.Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. It is no doubt true that the employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debateable issues, though we could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified. | 1 | 4,305 | 1,345 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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contained in the Rules, 2010 framed in exercise of the powers conferred under Article 233 and 234 read with proviso to Article 309 of the Constitution of India, the Rule being operated will be justified. As already noted, neither the notification nor the Rule were under challenge. In terms thereof the appellants on taking note that there is no other application/applicant seeking the appointment under the category reserved for Differently Abled Persons has filled up by selecting the next meritorious candidate from the other category. Hence in a circumstance where no challenge is laid to the Rule the action to that extent would be justified. 15. That apart, though it is contended by the private respondent that it was a mistake in indicating ?No? against the Column 3.1 – ‘Person with Disability?, what is necessary to be taken note is that against Column 2.4 – ‘Category?, it has been stated as ?General?. That apart the examination fee fixed for General candidates is Rs.250/- while for the eligible disabled applicant it is fixed at Rs.50/-. The private respondent in addition to indicating her category as ‘General? has paid the fee of Rs.250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview. On this aspect, to contend that the private respondent cannot make a contrary claim, the learned senior counsel for the appellants herein has relied on the decision in the case of J&K Public Service Commission vs. Israr Ahmad (2005) 12 SCC 498 wherein it is held in para 5 as hereunder:"5. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs."16. Further the decision in the case of Registrars General, Calcutta High Court vs. Shriniwas Prasad Shah & Ors. (2013) 12 SCC 364 is relied on, wherein this Court has disallowed the claim in a case where in the application the category of reservation was indicated but certificate was not produced and the fee applicable to general candidate was paid. In addition, the learned senior counsel for the appellants herein also refers to the inherent contradictions in the claim of the private respondent apart from the fact that the claim for consideration under the category reserved for Differently Abled Persons is not made. 17. In that regard it is pointed out that even as per the disability certificate dated 05.07.2010 sought to be relied on at present, the description of permanent disability is shown as Hemiplegia – Non-functional hand. It is in that background pointed out that though that is the nature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was made belatedly the private respondent has claimed that she is visually impaired, more than 80% and the reference made is to the same disability certificate dated 05.07.2010. The learned senior counsel for the private respondent no doubt has referred to an article relating to Hemiplegia wherein reference is also made to the difficulties in seeing. The very nature of the contention would indicate that in the instant facts the claim in the application under the category should have been made and the disability certificate was required to be produced along with the application since the nature of the disability was a matter which was to be considered by the recruiting authorities concerned, if need be on medical examination. If visual impairment as a consequence of Hemiplegia was to be considered, the percentage of disability by visual impairment will also be relevant and the same was required to be determined at the appropriate stage. 18. Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. It is no doubt true that the employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debateable issues, though we could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified.
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required to be carried forward, the same was also not the contention before the High Court nor has the private respondent herein challenged the said Notification dated 12.03.2016 on those grounds by offering herself as a candidate under the Category of Differently Abled Persons.The Rule therefore framed is under the provisions of the Constitution of India which relates to the selection of the Judicial Officers, for which the yardsticks could be laid down in the Rules. On this aspect of the matter the decision relied on by the learned senior counsel for the appellants in the case of V. Surendra Mohan vs. State of Tamil Nadu & Ors. (2019) 4 SCC 237 would be apposite. In the said case, this Court in a matter relating to the selection for the post of Civil Judge (Junior Division) to the Tamil Nadu Judicial Service was confronted with a situation whereunder the Notification prescribed the percentage of disability at 40 to 50 % for partially blind and partially deaf for selection. The candidate who had assailed the action possessed the disability certificate mentioning the disability at 70 %. Since under Section 33 of the PWD Act, 1995 no restriction on disability to the extent of 40 to 50 % can be put, the restriction on disability as per the Notification was assailed before the Madras High Court which culminated in the appeal before this Court. In that context while considering the matter, this Court had adverted to the issue as to whether the restriction on disability is in breach of the provisions of the PWD Act, 1995 and is it to be set aside. In that context, the validity of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 vis-a-vis the provisions of the PWD Act, 1995 was examined and the power under which the Rules 2007 (which is akin to the Rajasthan Rules, 2010) being framed, as empowered under the provisions of the Constitution was taken note with reference to the earlier judgments of this Court. Though the said decision is not in relation to Section 36 of the PWD Act, 1995, prima facie when it is noticed that Rule 10(4) is contained in the Rules, 2010 framed in exercise of the powers conferred under Article 233 and 234 read with proviso to Article 309 of the Constitution of India, the Rule being operated will be justified. As already noted, neither the notification nor the Rule were under challenge. In terms thereof the appellants on taking note that there is no other application/applicant seeking the appointment under the category reserved for Differently Abled Persons has filled up by selecting the next meritorious candidate from the other category. Hence in a circumstance where no challenge is laid to the Rule the action to that extent would be justified.That apart, though it is contended by the private respondent that it was a mistake in indicating ?No? against the Column 3.1 – ‘Person with Disability?, what is necessary to be taken note is that against Column 2.4 – ‘Category?, it has been stated as ?General?. That apart the examination fee fixed for General candidates is Rs.250/- while for the eligible disabled applicant it is fixed at Rs.50/-. The private respondent in addition to indicating her category as ‘General? has paid the fee of Rs.250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview.In that regard it is pointed out that even as per the disability certificate dated 05.07.2010 sought to be relied on at present, the description of permanent disability is shown as Hemiplegia – Non-functional hand. It is in that background pointed out that though that is the nature of disability indicated therein which will be locomotor disability, in the representation dated 28.11.2016 which was made belatedly the private respondent has claimed that she is visually impaired, more than 80% and the reference made is to the same disability certificate dated 05.07.2010. The learned senior counsel for the private respondent no doubt has referred to an article relating to Hemiplegia wherein reference is also made to the difficulties in seeing. The very nature of the contention would indicate that in the instant facts the claim in the application under the category should have been made and the disability certificate was required to be produced along with the application since the nature of the disability was a matter which was to be considered by the recruiting authorities concerned, if need be on medical examination. If visual impairment as a consequence of Hemiplegia was to be considered, the percentage of disability by visual impairment will also be relevant and the same was required to be determined at the appropriate stage.Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. It is no doubt true that the employment opportunities to the differently abled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debateable issues, though we could empathise with the cause of the private respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified.
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Sarda Prasad And Others Vs. Lala Jumna Prasad And Others | of debts is no ground for thinking that the provisions of S. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word discharge can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge. The ordinary use of the word judgment-debtor to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that the Code of Civil Procedure itself defines judgment-debtor to mean any person against whom a decree is passed or an order capable of execution has been made. 7. It is helpful to notice in this connection the provisions of S. 8 of the Limitation Act that nothing in S. 6 or S. 7 applies to suits to enforce rights of pre-emption. If S. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of S. 7.This is a further reason in support of the conclusion that the word discharge in S. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We, therefore, hold that the first argument raised on behalf of the appellants has no substance. 8. Equally untenable is the second argument that the provisions of O. 32 of the Code of Civil Procedure debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartas duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not. 9. When any minor member of a joint family is a party to a proceeding in a court he has, however, to be represented by a next friend appointed by the court and where somebody other than the managing member of the family has been appointed a guardian ad litem there might be difficulty in the way of the managing member giving a discharge on behalf of the minor. Where, however, the managing member himself is the guardian ad litem the only difficulty in the way of action being taken by him on behalf of a minor is to the extent as mentioned in O. 32, R. 6 and 7. In Ganesha Row v. Tuljaram Row, 40 Ind App 132 the Judicial Committee pointed out that :- No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests on the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court. 10. In that case their Lordships held that in view of the provisions of S. 462 of the then Code of Civil Procedure (which corresponds to O. 32, R. 7 of the present Civil Procedure Code) the managing member who had been appointed a guardian in the suit had no authority to enter into any compromise or agreement purporting to bind the minor. This principle has been applied also to cases where the provisions of O. 32, R. 6, would apply and so it has been held in numerous cases in India that the Karta of a Hindu joint family though guardian in the suit cannot give a valid discharge in respect of a claim or a decree for money or other movable property. (Parmeshwari Singh v. Ranjit Singh, AIR 1939 Pat 33 and Letchman Chetty v. Subbiah Chetty, ILR 47 Mad 920: (AIR 1925 Mad 78 ). 11. In the present case, however, there is no scope for the application of either the provisions of O. 32, R. 6 or O. 32, R. 7 of the Code of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For, clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any agreement or compromise. 12. We are, therefore, of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under S. 7 of Limitation Act from the date of the decree. The High Court was, therefore, right in its conclusion that the application for execution was barred by limitation. | 0[ds]6. On the first contention the argument is that the word discharge is appropriate only in respect of a monetary claim and is wholly inappropriate in respect of any decree for possession whether on partition or otherwise. There is, in our opinion, no substance in this argument. The mere fact that the two illustrations to S. 7 are in respect of debts is no ground for thinking that the provisions of S. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word discharge can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge. The ordinary use of the word judgment-debtor to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that theCode of Civil Procedure itself defines judgment-debtor to mean any person against whom a decree is passed or an order capable of execution has been made7. It is helpful to notice in this connection the provisions of S. 8 of the Limitation Act that nothing in S. 6 or S. 7 applies to suits to enforce rights of pre-emption. If S. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of S. 7.This is a further reason in support of the conclusion that the word discharge in S. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We, therefore, hold that the first argument raised on behalf of the appellants has no substance8. Equally untenable is the second argument that the provisions of O. 32 of theCode of Civil Procedure debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartas duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not11. In the present case, however, there is no scope for the application of either the provisions of O. 32, R. 6 or O. 32, R. 7 of theCode of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For, clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any agreement or compromise12. We are, therefore, of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under S. 7 of Limitation Act from the date of the decree. The High Court was, therefore, right in its conclusion that the application for execution was barred by limitation. | 0 | 1,729 | 749 | ### 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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of debts is no ground for thinking that the provisions of S. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word discharge can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge. The ordinary use of the word judgment-debtor to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that the Code of Civil Procedure itself defines judgment-debtor to mean any person against whom a decree is passed or an order capable of execution has been made. 7. It is helpful to notice in this connection the provisions of S. 8 of the Limitation Act that nothing in S. 6 or S. 7 applies to suits to enforce rights of pre-emption. If S. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of S. 7.This is a further reason in support of the conclusion that the word discharge in S. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We, therefore, hold that the first argument raised on behalf of the appellants has no substance. 8. Equally untenable is the second argument that the provisions of O. 32 of the Code of Civil Procedure debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartas duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not. 9. When any minor member of a joint family is a party to a proceeding in a court he has, however, to be represented by a next friend appointed by the court and where somebody other than the managing member of the family has been appointed a guardian ad litem there might be difficulty in the way of the managing member giving a discharge on behalf of the minor. Where, however, the managing member himself is the guardian ad litem the only difficulty in the way of action being taken by him on behalf of a minor is to the extent as mentioned in O. 32, R. 6 and 7. In Ganesha Row v. Tuljaram Row, 40 Ind App 132 the Judicial Committee pointed out that :- No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests on the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court. 10. In that case their Lordships held that in view of the provisions of S. 462 of the then Code of Civil Procedure (which corresponds to O. 32, R. 7 of the present Civil Procedure Code) the managing member who had been appointed a guardian in the suit had no authority to enter into any compromise or agreement purporting to bind the minor. This principle has been applied also to cases where the provisions of O. 32, R. 6, would apply and so it has been held in numerous cases in India that the Karta of a Hindu joint family though guardian in the suit cannot give a valid discharge in respect of a claim or a decree for money or other movable property. (Parmeshwari Singh v. Ranjit Singh, AIR 1939 Pat 33 and Letchman Chetty v. Subbiah Chetty, ILR 47 Mad 920: (AIR 1925 Mad 78 ). 11. In the present case, however, there is no scope for the application of either the provisions of O. 32, R. 6 or O. 32, R. 7 of the Code of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For, clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any agreement or compromise. 12. We are, therefore, of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under S. 7 of Limitation Act from the date of the decree. The High Court was, therefore, right in its conclusion that the application for execution was barred by limitation.
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6. On the first contention the argument is that the word discharge is appropriate only in respect of a monetary claim and is wholly inappropriate in respect of any decree for possession whether on partition or otherwise. There is, in our opinion, no substance in this argument. The mere fact that the two illustrations to S. 7 are in respect of debts is no ground for thinking that the provisions of S. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word discharge can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge. The ordinary use of the word judgment-debtor to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that theCode of Civil Procedure itself defines judgment-debtor to mean any person against whom a decree is passed or an order capable of execution has been made7. It is helpful to notice in this connection the provisions of S. 8 of the Limitation Act that nothing in S. 6 or S. 7 applies to suits to enforce rights of pre-emption. If S. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of S. 7.This is a further reason in support of the conclusion that the word discharge in S. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We, therefore, hold that the first argument raised on behalf of the appellants has no substance8. Equally untenable is the second argument that the provisions of O. 32 of theCode of Civil Procedure debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartas duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not11. In the present case, however, there is no scope for the application of either the provisions of O. 32, R. 6 or O. 32, R. 7 of theCode of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For, clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any agreement or compromise12. We are, therefore, of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under S. 7 of Limitation Act from the date of the decree. The High Court was, therefore, right in its conclusion that the application for execution was barred by limitation.
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M/S.S.B.P. & Co Vs. M/S. Patel Engineering Ltd. | from office for any reason or by or pursuant to agreement of the parties and not where the arbitrator appointed by either party declines to accept the appointment or refuses to act as such and that the term `rules appearing in Section 15(2) takes within its fold not only the statutory rules, but also the terms of agreement entered into between the parties. 22. The words `refuse and `withdraw have not been defined in the Act. Therefore, we may usefully refer to dictionary meanings of these words. As per P. Ramanatha Aiyars Advanced Law Lexicon (Third Edition 2005), the word `refuse means to decline positively; to express or show a determination not to do something. As per Century Dictionary, the word `refuse means to deny, as a request, demand or invitation; to decline to accept; to reject, as to refuse an offer. As per New Oxford Illustrated Dictionary, Volume II, p.1421, the word `refuse means - say or convey by action that one will not accept, submit to, give, grant, gratify consent. The dictionary meanings of the word `withdraw are as follows: 1. The Law Lexicon (Third Edition, 2005) - to take back or away something that has been given, allowed, possessed, experienced or enjoyed; to draw away. 2. Blacks Law Dictionary (Eighth Edition, p.1632) - the act of taking back or away, removal; the act of retreating from a place, position or situation. 3. New Oxford Illustrated Dictionary (Volume II, p.1894) - pull aside or back, take away, remove, retract; retire from presence or place, go aside or apart. 23. The above extracted meanings of two words bring out sharp distinction between them. While the word `refuse denotes a situation before acceptance of an invitation, offer, office, position, privilege and the like, the word `withdraw means to retract, retire or retreat from a place, position or situation after acceptance thereof. Therefore, Section 15(2) of the Act does not per se apply to a case where an arbitrator appointed by a party to the agreement declines to accept the appointment or refuses to arbitrate in the matter. Of course in a given case, refusal to act on the arbitrators part can be inferred after he has entered upon arbitration by giving consent to the nomination made by either party to the agreement. 24. Insofar as this case is concerned, we find that the arbitrator appointed by respondent No.1, namely, Shri S.N. Huddar declined to accept the appointment/arbitrate in the matter on the ground that in his capacity as Superintending Engineer and Chief Engineer, he was associated with Koyna Hydel Project implying thereby that he may not be able to objectively examine the claims of the parties or the other party may question his impartiality. To put it differently, Shri S.N. Huddar did not enter upon the arbitration. Therefore, there was no question of his withdrawing from the office of arbitrator so as to enable respondent No.1 to appoint a substitute arbitrator. In any case, in the absence of a clear stipulation to that effect in the agreements, respondent No.1 could not have appointed a substitute arbitrator and the learned designated Judge gravely erred in appointing the third arbitrator by presuming that the appointment of Shri S.L. Jain was in accordance with law. 25. The decision in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra) on which reliance has been placed by Shri Dave does not help the cause of respondent No.1. A careful reading of that judgment shows that immediately after the arbitrator appointed by the Managing Director of the respondent-Company resigned, another arbitrator was appointed in accordance with arbitration agreement. The permissibility of appointment of another arbitrator by the Managing Director of the respondent-Company is clearly evinced from the following extracts of paragraphs 2 and 3 of the judgment: "2. On a dispute having arisen, the Managing Director of the respondent Company appointed an arbitrator in terms of the arbitration clause. The arbitrator resigned. Thereupon, the Managing Director of the respondent Company, in view of the mandate in the arbitration agreement promptly appointed another arbitrator....... 3.........The Division Bench held that the position obtaining under Section 8(1) of the Arbitration Act of 1940 differed from that available under the present Act especially in the context of Section 15 thereof and that in terms of Section 15(2) of the Act, the Managing Director could, on the basis of the arbitration agreement, appoint another arbitrator when the originally appointed arbitrator resigned, thus attracting Section 15(1)(a) of the Act......" Although, the language of paragraph 4 of the judgment gives an impression that the Court decided the matter by presuming that the agreement between the parties did not contain a provision for appointment of a substitute arbitrator if the original appointment terminates or if the original arbitrator withdraws from the arbitration and this omission is supplied by Section 15(2) of the Act, if that paragraph is read in conjunction with paragraphs 2 and 3 it becomes clear that the arbitration agreement did provide for appointment of another arbitrator in the event originally appointed arbitrator was to resign and there was no plausible reason for the Court to presume that there is an omission in the agreement on the issue of appointment of a substitute arbitrator. In any case, the judgment cannot be read as laying down a proposition of law that in the absence of a specific provision in the arbitration clause, either party to the agreement can appoint a substitute arbitrator in the event of the originally appointed arbitrator refusing to act. 26. At the cost of repetition, we consider it necessary to observe that the agreements entered into between the appellant and respondent No.1 do not contain a provision for appointment of a substitute arbitrator in case arbitrator appointed by either party was to decline to accept appointment or refuse to arbitrate in the matter. Therefore, respondent No.1 cannot draw support from the ratio of the judgment in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra). | 1[ds]20. We may now advert to the scope of Clause 19 of piece work agreement, which provides for appointment of two arbitrators, one by each party, with liberty to the arbitrators to appoint an Umpire, in case of difference or their failure to reach an agreement within one month of their appointment. The award made by two arbitrators or Umpire, as the case may be, is treated as final, conclusive and binding on the parties. This clause also specifies the consequence of failure of either party to the difference or dispute to appoint an arbitrator within 30 calendar days counted from the date of notice in writing given by the other side or refusal of the arbitrator appointed by either party to accept such appointment or act upon the same. In that event, the arbitrator appointed by the other party becomes entitled to proceed with the reference as the Sole Arbitrator and make an award. There is nothing in Clause 19 from which it can be inferred that in the event of refusal of an arbitrator to accept the appointment or arbitrate in the matter, the party appointing such arbitrator has an implicit right to appoint a substitute arbitrator. Thus, in terms of the agreement entered into between the parties, respondent No.1 could not appoint Shri S.L. Jain as a substitute arbitrator simply because Shri S.N. Huddar declined to accept the appointment as an arbitrator. The only consequence of Shri S.N. Huddars refusal to act as an arbitrator on behalf of respondent No.1 was that respondent No.2 who was appointed as an arbitrator by the appellants became the Sole Arbitrator for deciding the disputes or differences between the parties21. The learned designated Judge appointed the third arbitrator because he was of the view that in terms of Section 15(2), a substitute arbitrator could be appointed where the mandate of an already appointed arbitrator terminates. In taking that view, the learned designated Judge failed to notice that Section 15(1) provides for termination of the mandate of arbitrator where he withdraws from office for any reason or by or pursuant to agreement of the parties and not where the arbitrator appointed by either party declines to accept the appointment or refuses to act as such and that the term `rules appearing in Section 15(2) takes within its fold not only the statutory rules, but also the terms of agreement entered into between the parties22. The words `refuse and `withdraw have not been defined in the Act. Therefore, we may usefully refer to dictionary meanings of these words. As per P. Ramanatha Aiyars Advanced Law Lexicon (Third Edition 2005), the word `refuse means to decline positively; to express or show a determination not to do something. As per Century Dictionary, the word `refuse means to deny, as a request, demand or invitation; to decline to accept; to reject, as to refuse an offer. As per New Oxford Illustrated Dictionary, Volume II, p.1421, the word `refuse meanssay or convey by action that one will not accept, submit to, give, grant, gratify consent23. The above extracted meanings of two words bring out sharp distinction between them. While the word `refuse denotes a situation before acceptance of an invitation, offer, office, position, privilege and the like, the word `withdraw means to retract, retire or retreat from a place, position or situation after acceptance thereof. Therefore, Section 15(2) of the Act does not per se apply to a case where an arbitrator appointed by a party to the agreement declines to accept the appointment or refuses to arbitrate in the matter. Of course in a given case, refusal to act on the arbitrators part can be inferred after he has entered upon arbitration by giving consent to the nomination made by either party to the agreement24. Insofar as this case is concerned, we find that the arbitrator appointed by respondent No.1, namely, Shri S.N. Huddar declined to accept the appointment/arbitrate in the matter on the ground that in his capacity as Superintending Engineer and Chief Engineer, he was associated with Koyna Hydel Project implying thereby that he may not be able to objectively examine the claims of the parties or the other party may question his impartiality. To put it differently, Shri S.N. Huddar did not enter upon the arbitration. Therefore, there was no question of his withdrawing from the office of arbitrator so as to enable respondent No.1 to appoint a substitute arbitrator. In any case, in the absence of a clear stipulation to that effect in the agreements, respondent No.1 could not have appointed a substitute arbitrator and the learned designated Judge gravely erred in appointing the third arbitrator by presuming that the appointment of Shri S.L. Jain was in accordance with lawAlthough, the language of paragraph 4 of the judgment gives an impression that the Court decided the matter by presuming that the agreement between the parties did not contain a provision for appointment of a substitute arbitrator if the original appointment terminates or if the original arbitrator withdraws from the arbitration and this omission is supplied by Section 15(2) of the Act, if that paragraph is read in conjunction with paragraphs 2 and 3 it becomes clear that the arbitration agreement did provide for appointment of another arbitrator in the event originally appointed arbitrator was to resign and there was no plausible reason for the Court to presume that there is an omission in the agreement on the issue of appointment of a substitute arbitrator. In any case, the judgment cannot be read as laying down a proposition of law that in the absence of a specific provision in the arbitration clause, either party to the agreement can appoint a substitute arbitrator in the event of the originally appointed arbitrator refusing to act26. At the cost of repetition, we consider it necessary to observe that the agreements entered into between the appellant and respondent No.1 do not contain a provision for appointment of a substitute arbitrator in case arbitrator appointed by either party was to decline to accept appointment or refuse to arbitrate in the matter. Therefore, respondent No.1 cannot draw support from the ratio of the judgment in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra). | 1 | 8,887 | 1,157 | ### Instruction:
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from office for any reason or by or pursuant to agreement of the parties and not where the arbitrator appointed by either party declines to accept the appointment or refuses to act as such and that the term `rules appearing in Section 15(2) takes within its fold not only the statutory rules, but also the terms of agreement entered into between the parties. 22. The words `refuse and `withdraw have not been defined in the Act. Therefore, we may usefully refer to dictionary meanings of these words. As per P. Ramanatha Aiyars Advanced Law Lexicon (Third Edition 2005), the word `refuse means to decline positively; to express or show a determination not to do something. As per Century Dictionary, the word `refuse means to deny, as a request, demand or invitation; to decline to accept; to reject, as to refuse an offer. As per New Oxford Illustrated Dictionary, Volume II, p.1421, the word `refuse means - say or convey by action that one will not accept, submit to, give, grant, gratify consent. The dictionary meanings of the word `withdraw are as follows: 1. The Law Lexicon (Third Edition, 2005) - to take back or away something that has been given, allowed, possessed, experienced or enjoyed; to draw away. 2. Blacks Law Dictionary (Eighth Edition, p.1632) - the act of taking back or away, removal; the act of retreating from a place, position or situation. 3. New Oxford Illustrated Dictionary (Volume II, p.1894) - pull aside or back, take away, remove, retract; retire from presence or place, go aside or apart. 23. The above extracted meanings of two words bring out sharp distinction between them. While the word `refuse denotes a situation before acceptance of an invitation, offer, office, position, privilege and the like, the word `withdraw means to retract, retire or retreat from a place, position or situation after acceptance thereof. Therefore, Section 15(2) of the Act does not per se apply to a case where an arbitrator appointed by a party to the agreement declines to accept the appointment or refuses to arbitrate in the matter. Of course in a given case, refusal to act on the arbitrators part can be inferred after he has entered upon arbitration by giving consent to the nomination made by either party to the agreement. 24. Insofar as this case is concerned, we find that the arbitrator appointed by respondent No.1, namely, Shri S.N. Huddar declined to accept the appointment/arbitrate in the matter on the ground that in his capacity as Superintending Engineer and Chief Engineer, he was associated with Koyna Hydel Project implying thereby that he may not be able to objectively examine the claims of the parties or the other party may question his impartiality. To put it differently, Shri S.N. Huddar did not enter upon the arbitration. Therefore, there was no question of his withdrawing from the office of arbitrator so as to enable respondent No.1 to appoint a substitute arbitrator. In any case, in the absence of a clear stipulation to that effect in the agreements, respondent No.1 could not have appointed a substitute arbitrator and the learned designated Judge gravely erred in appointing the third arbitrator by presuming that the appointment of Shri S.L. Jain was in accordance with law. 25. The decision in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra) on which reliance has been placed by Shri Dave does not help the cause of respondent No.1. A careful reading of that judgment shows that immediately after the arbitrator appointed by the Managing Director of the respondent-Company resigned, another arbitrator was appointed in accordance with arbitration agreement. The permissibility of appointment of another arbitrator by the Managing Director of the respondent-Company is clearly evinced from the following extracts of paragraphs 2 and 3 of the judgment: "2. On a dispute having arisen, the Managing Director of the respondent Company appointed an arbitrator in terms of the arbitration clause. The arbitrator resigned. Thereupon, the Managing Director of the respondent Company, in view of the mandate in the arbitration agreement promptly appointed another arbitrator....... 3.........The Division Bench held that the position obtaining under Section 8(1) of the Arbitration Act of 1940 differed from that available under the present Act especially in the context of Section 15 thereof and that in terms of Section 15(2) of the Act, the Managing Director could, on the basis of the arbitration agreement, appoint another arbitrator when the originally appointed arbitrator resigned, thus attracting Section 15(1)(a) of the Act......" Although, the language of paragraph 4 of the judgment gives an impression that the Court decided the matter by presuming that the agreement between the parties did not contain a provision for appointment of a substitute arbitrator if the original appointment terminates or if the original arbitrator withdraws from the arbitration and this omission is supplied by Section 15(2) of the Act, if that paragraph is read in conjunction with paragraphs 2 and 3 it becomes clear that the arbitration agreement did provide for appointment of another arbitrator in the event originally appointed arbitrator was to resign and there was no plausible reason for the Court to presume that there is an omission in the agreement on the issue of appointment of a substitute arbitrator. In any case, the judgment cannot be read as laying down a proposition of law that in the absence of a specific provision in the arbitration clause, either party to the agreement can appoint a substitute arbitrator in the event of the originally appointed arbitrator refusing to act. 26. At the cost of repetition, we consider it necessary to observe that the agreements entered into between the appellant and respondent No.1 do not contain a provision for appointment of a substitute arbitrator in case arbitrator appointed by either party was to decline to accept appointment or refuse to arbitrate in the matter. Therefore, respondent No.1 cannot draw support from the ratio of the judgment in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra).
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of difference or their failure to reach an agreement within one month of their appointment. The award made by two arbitrators or Umpire, as the case may be, is treated as final, conclusive and binding on the parties. This clause also specifies the consequence of failure of either party to the difference or dispute to appoint an arbitrator within 30 calendar days counted from the date of notice in writing given by the other side or refusal of the arbitrator appointed by either party to accept such appointment or act upon the same. In that event, the arbitrator appointed by the other party becomes entitled to proceed with the reference as the Sole Arbitrator and make an award. There is nothing in Clause 19 from which it can be inferred that in the event of refusal of an arbitrator to accept the appointment or arbitrate in the matter, the party appointing such arbitrator has an implicit right to appoint a substitute arbitrator. Thus, in terms of the agreement entered into between the parties, respondent No.1 could not appoint Shri S.L. Jain as a substitute arbitrator simply because Shri S.N. Huddar declined to accept the appointment as an arbitrator. The only consequence of Shri S.N. Huddars refusal to act as an arbitrator on behalf of respondent No.1 was that respondent No.2 who was appointed as an arbitrator by the appellants became the Sole Arbitrator for deciding the disputes or differences between the parties21. The learned designated Judge appointed the third arbitrator because he was of the view that in terms of Section 15(2), a substitute arbitrator could be appointed where the mandate of an already appointed arbitrator terminates. In taking that view, the learned designated Judge failed to notice that Section 15(1) provides for termination of the mandate of arbitrator where he withdraws from office for any reason or by or pursuant to agreement of the parties and not where the arbitrator appointed by either party declines to accept the appointment or refuses to act as such and that the term `rules appearing in Section 15(2) takes within its fold not only the statutory rules, but also the terms of agreement entered into between the parties22. The words `refuse and `withdraw have not been defined in the Act. Therefore, we may usefully refer to dictionary meanings of these words. As per P. Ramanatha Aiyars Advanced Law Lexicon (Third Edition 2005), the word `refuse means to decline positively; to express or show a determination not to do something. As per Century Dictionary, the word `refuse means to deny, as a request, demand or invitation; to decline to accept; to reject, as to refuse an offer. As per New Oxford Illustrated Dictionary, Volume II, p.1421, the word `refuse meanssay or convey by action that one will not accept, submit to, give, grant, gratify consent23. The above extracted meanings of two words bring out sharp distinction between them. While the word `refuse denotes a situation before acceptance of an invitation, offer, office, position, privilege and the like, the word `withdraw means to retract, retire or retreat from a place, position or situation after acceptance thereof. Therefore, Section 15(2) of the Act does not per se apply to a case where an arbitrator appointed by a party to the agreement declines to accept the appointment or refuses to arbitrate in the matter. Of course in a given case, refusal to act on the arbitrators part can be inferred after he has entered upon arbitration by giving consent to the nomination made by either party to the agreement24. Insofar as this case is concerned, we find that the arbitrator appointed by respondent No.1, namely, Shri S.N. Huddar declined to accept the appointment/arbitrate in the matter on the ground that in his capacity as Superintending Engineer and Chief Engineer, he was associated with Koyna Hydel Project implying thereby that he may not be able to objectively examine the claims of the parties or the other party may question his impartiality. To put it differently, Shri S.N. Huddar did not enter upon the arbitration. Therefore, there was no question of his withdrawing from the office of arbitrator so as to enable respondent No.1 to appoint a substitute arbitrator. In any case, in the absence of a clear stipulation to that effect in the agreements, respondent No.1 could not have appointed a substitute arbitrator and the learned designated Judge gravely erred in appointing the third arbitrator by presuming that the appointment of Shri S.L. Jain was in accordance with lawAlthough, the language of paragraph 4 of the judgment gives an impression that the Court decided the matter by presuming that the agreement between the parties did not contain a provision for appointment of a substitute arbitrator if the original appointment terminates or if the original arbitrator withdraws from the arbitration and this omission is supplied by Section 15(2) of the Act, if that paragraph is read in conjunction with paragraphs 2 and 3 it becomes clear that the arbitration agreement did provide for appointment of another arbitrator in the event originally appointed arbitrator was to resign and there was no plausible reason for the Court to presume that there is an omission in the agreement on the issue of appointment of a substitute arbitrator. In any case, the judgment cannot be read as laying down a proposition of law that in the absence of a specific provision in the arbitration clause, either party to the agreement can appoint a substitute arbitrator in the event of the originally appointed arbitrator refusing to act26. At the cost of repetition, we consider it necessary to observe that the agreements entered into between the appellant and respondent No.1 do not contain a provision for appointment of a substitute arbitrator in case arbitrator appointed by either party was to decline to accept appointment or refuse to arbitrate in the matter. Therefore, respondent No.1 cannot draw support from the ratio of the judgment in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. (supra).
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State Of Madras Vs. C. J. Coelho | after such payment." (emphasis (here in ) supplied)13. Accordingly, we hold that there is no force in the contention that the payment of interest was capital expenditure within S. 5 (e) of the Act14. The next point, namely, that the payment of interest was a personal expense is equally without substance. We are unable to appreciate that any expense to discharge a personal obligation becomes a personal expense within S. 5(e). Personal expenses would include expenses on the person of the assessee to satisfy his personal needs such as clothes. food, etc., or purposes not related to the business for which the deduction is claimed.15. The third ground raised by Mr. Chetty needs careful scrutiny. This Court. after reviewing English and Indian cases, summarised this position in Commr, of Income-tax. Kerala v. Malayalam Plantation Ltd., Civil Appeals Nos. 384 and 385 of 1963 D/- 10-4-1964 : (AIR 1964 SC 1722 ). as follows :"The aforesaid discussion leads to the following result : The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a pre-condition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say, the expenditure incurred shall be for carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business. It cannot include sums spent by the assessee as agent of a third party, whether the origin of the agency is voluntary or statutory; in that event, he pays the amount on behalf of another and for a purpose unconnected with the business."16. Before deciding the question, it is necessary to mention three other decisions of this Court. In Eastern Investments Ltd, v. Commr. of income-tax, West Bengal, 1951 SCR 594 : (AIR 1951 SC 278 .) this Court held that interest on debentures issued by an investment company was to be allowed as business expenditureunder S. 12(2) of the Indian income-tax Act. It observed that this being an investment company it it borrowed and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction under S. 12(2) of the Act, Earlier, it had observed that Scottish North American Trust v. Farmer, (1912) 5 Tax Cas 693 was a somewhat similar case.17. In Dharamvir Dhir v. Commr. of Income-tax, (1961) 3 SCR 359 : (AIR 1961 SC 668 ) this Court held that a payment of 11/ 16th of the net profits of the assessees business was an expenditure wholly and exclusively laid out for the purposes of the business as the assessee had arranged financing of the business on the best terms that he could manage.18. In the Commr, of Income-tax Bombay v. Jagannath Kissonlal, (1961) 2 SCR 644 : (AIR 1961 SC 748 ) this Court upheld the claim of the assessee to deduct the amount it had to pay the bank on a joint promissory note.19. The only caste cited by Mr. Chetty, which has some resemblance to the present case the decision of the Bombay High Court in Metro Theatre Bombay Ltd. v. Commr. of Income-tax, (1946) 14 ITR 638 (Bom) . But this case is distinguishable for the interest claimed to be deducted, and which was disallowed, was in respect of the amount borrowed for acquiring land on 999 years lease, on which a cinema was subsequently built. There was no immediate connection between the interest paid and the cinema business. As Kania J., as he then was, put it, "if the interest was not paid the result would be not necessarily the stoppage of showing films, but the assessee will not acquire the lease of this property20. Applying the above principles to the facts of this case, it seems to us that it is impossible to dissociate the character of the assessee as the owner of the plantation and as a person working the plantation. The assessee had bought the plantation for working it as a plantation, i.e., for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the, purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial amounting must be debited against the receipts. There is nothing in the Act which prohibits such expenses from being deducted. No farmer would treat interest paid on capital borrowed for the purchase of the plantation as anything but expenses, and as long as the deductions he claims, apart from any statutory prohibition, can be fairly said to lead to the determination of the true net agricultural income, these must be allowed under the Act. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition, of a plantation and that between interest paid on capital borrowed for the purpose of existing plantations, both are for the purposes of the plantation. | 0[ds]10. If we apply these principles to the facts of this case, the answer seems clear that the payment of interest is revenue expenditure.No new asset is acquired with it; no enduring benefit is obtained. Expenditure incurred was part of circulating or floating capital of the assessee. In ordinary commercial practice payment of interest would not be termed as capital expenditure.Accordingly, we hold that there is no force in the contention that the payment of interest was capital expenditure within S. 5 (e) of the Act14. The next point, namely, that the payment of interest was a personal expense is equally without substance. We are unable to appreciate that any expense to discharge a personal obligation becomes a personal expense within S. 5(e). Personal expenses would include expenses on the person of the assessee to satisfy his personal needs such as clothes. food, etc., or purposes not related to the business for which the deduction is claimed.Applying the above principles to the facts of this case, it seems to us that it is impossible to dissociate the character of the assessee as the owner of the plantation and as a person working the plantation. The assessee had bought the plantation for working it as a plantation, i.e., for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the, purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial amounting must be debited against the receipts. There is nothing in the Act which prohibits such expenses from being deducted. No farmer would treat interest paid on capital borrowed for the purchase of the plantation as anything but expenses, and as long as the deductions he claims, apart from any statutory prohibition, can be fairly said to lead to the determination of the true net agricultural income, these must be allowed under the Act. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition, of a plantation and that between interest paid on capital borrowed for the purpose of existing plantations, both are for the purposes of the plantation. | 0 | 3,640 | 469 | ### 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:
after such payment." (emphasis (here in ) supplied)13. Accordingly, we hold that there is no force in the contention that the payment of interest was capital expenditure within S. 5 (e) of the Act14. The next point, namely, that the payment of interest was a personal expense is equally without substance. We are unable to appreciate that any expense to discharge a personal obligation becomes a personal expense within S. 5(e). Personal expenses would include expenses on the person of the assessee to satisfy his personal needs such as clothes. food, etc., or purposes not related to the business for which the deduction is claimed.15. The third ground raised by Mr. Chetty needs careful scrutiny. This Court. after reviewing English and Indian cases, summarised this position in Commr, of Income-tax. Kerala v. Malayalam Plantation Ltd., Civil Appeals Nos. 384 and 385 of 1963 D/- 10-4-1964 : (AIR 1964 SC 1722 ). as follows :"The aforesaid discussion leads to the following result : The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a pre-condition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say, the expenditure incurred shall be for carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business. It cannot include sums spent by the assessee as agent of a third party, whether the origin of the agency is voluntary or statutory; in that event, he pays the amount on behalf of another and for a purpose unconnected with the business."16. Before deciding the question, it is necessary to mention three other decisions of this Court. In Eastern Investments Ltd, v. Commr. of income-tax, West Bengal, 1951 SCR 594 : (AIR 1951 SC 278 .) this Court held that interest on debentures issued by an investment company was to be allowed as business expenditureunder S. 12(2) of the Indian income-tax Act. It observed that this being an investment company it it borrowed and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction under S. 12(2) of the Act, Earlier, it had observed that Scottish North American Trust v. Farmer, (1912) 5 Tax Cas 693 was a somewhat similar case.17. In Dharamvir Dhir v. Commr. of Income-tax, (1961) 3 SCR 359 : (AIR 1961 SC 668 ) this Court held that a payment of 11/ 16th of the net profits of the assessees business was an expenditure wholly and exclusively laid out for the purposes of the business as the assessee had arranged financing of the business on the best terms that he could manage.18. In the Commr, of Income-tax Bombay v. Jagannath Kissonlal, (1961) 2 SCR 644 : (AIR 1961 SC 748 ) this Court upheld the claim of the assessee to deduct the amount it had to pay the bank on a joint promissory note.19. The only caste cited by Mr. Chetty, which has some resemblance to the present case the decision of the Bombay High Court in Metro Theatre Bombay Ltd. v. Commr. of Income-tax, (1946) 14 ITR 638 (Bom) . But this case is distinguishable for the interest claimed to be deducted, and which was disallowed, was in respect of the amount borrowed for acquiring land on 999 years lease, on which a cinema was subsequently built. There was no immediate connection between the interest paid and the cinema business. As Kania J., as he then was, put it, "if the interest was not paid the result would be not necessarily the stoppage of showing films, but the assessee will not acquire the lease of this property20. Applying the above principles to the facts of this case, it seems to us that it is impossible to dissociate the character of the assessee as the owner of the plantation and as a person working the plantation. The assessee had bought the plantation for working it as a plantation, i.e., for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the, purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial amounting must be debited against the receipts. There is nothing in the Act which prohibits such expenses from being deducted. No farmer would treat interest paid on capital borrowed for the purchase of the plantation as anything but expenses, and as long as the deductions he claims, apart from any statutory prohibition, can be fairly said to lead to the determination of the true net agricultural income, these must be allowed under the Act. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition, of a plantation and that between interest paid on capital borrowed for the purpose of existing plantations, both are for the purposes of the plantation.
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0
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10. If we apply these principles to the facts of this case, the answer seems clear that the payment of interest is revenue expenditure.No new asset is acquired with it; no enduring benefit is obtained. Expenditure incurred was part of circulating or floating capital of the assessee. In ordinary commercial practice payment of interest would not be termed as capital expenditure.Accordingly, we hold that there is no force in the contention that the payment of interest was capital expenditure within S. 5 (e) of the Act14. The next point, namely, that the payment of interest was a personal expense is equally without substance. We are unable to appreciate that any expense to discharge a personal obligation becomes a personal expense within S. 5(e). Personal expenses would include expenses on the person of the assessee to satisfy his personal needs such as clothes. food, etc., or purposes not related to the business for which the deduction is claimed.Applying the above principles to the facts of this case, it seems to us that it is impossible to dissociate the character of the assessee as the owner of the plantation and as a person working the plantation. The assessee had bought the plantation for working it as a plantation, i.e., for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the, purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial amounting must be debited against the receipts. There is nothing in the Act which prohibits such expenses from being deducted. No farmer would treat interest paid on capital borrowed for the purchase of the plantation as anything but expenses, and as long as the deductions he claims, apart from any statutory prohibition, can be fairly said to lead to the determination of the true net agricultural income, these must be allowed under the Act. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition, of a plantation and that between interest paid on capital borrowed for the purpose of existing plantations, both are for the purposes of the plantation.
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M/s. Ellerman Lines Limited Vs. Commissioner of Income Tax, West Bengal I | development rebate. In reply to that letter, the Board of Revenue wrote to them as follows :"Sub :- Assessment of British Shipping Companies on the basis of ratio certificates - Treatment of investment allowances granted in the U. K.I am directed to reply your letter dated 8th February 1957 on the above subject and to state that as the development rebate which corresponds to the investment allowance granted in the U. K. is allowed under the Indian Income-tax Act from the assessment year 1956-57, there is no objection to allow the investment allowances for the purpose of the computation of the Indian Income of British Shipping Companies. This would, however be subject to the condition that the investment allowance would be permitted as a deduction only to the extent to which the rate of the allowance granted in the U. K. is not greater than the rate of development rebate allowed under the Indian Income-tax Act."13. We were informed that the copies of that letters were sent to the Income-tax Commissioners in the various States. From this letter, it is clear that the Board of Revenue had instructed the taxing authorities to take into consideration the investment allowance granted by the U. K. authorities in computing the taxable income of the British Shipping Companies. At this stage, it is necessary to mention that the proviso to Cl. (vib) of Section 10 (2) referred to earlier was incorporated into the Act sometime after the above instructions were issued by the Board of Revenue.14. The authorities under the Act have proceeded on the basis that the computation of the income of the assessee has to be made on the second of the three bases mentioned in R. 33. This assumption appears to be incorrect. Admittedly the profits of the assessee company were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned in Rule 33 cannot be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned in Rule 33 is the relevant basis. In our opinion the High Court erred in adopting that approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression cannot alter the true position in law. It is obvious that that basis could not have been applied That being so the computation of the appellants income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the Income-tax Officer may consider to be reasonable or on the third basis i.e. "in such other manner as the Income-tax Officer may deem suitable.15. From the assessment orders made by the Income-tax Officer, it does not appears that in computing the taxable income of the assessee, he adopted the first basis. The most appropriate basis under which he could have computed the income was the have computed the income was the last basis viz. "in such other manner as the Income-tax Officer may deem suitable." While adopting that basis, the Income-tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis so long as that basis does not conflict either with Rule 33 or with the intructions or directions given by the Board of Revenue. The power given to the Income-tax Officer under that basis is a very wide power. That power is available not only to the Income-tax Officer but also to the Appellant Assistant Commissioner and the Tribunal. As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U. K. authorities,it cannot be said that the decision reached by the Tribunal was an unreasonable one. The Tribunals decision accords with the instructions given by the Board of Revenue.16. The fact the proviso to Section 10 (2) (vib) was incorporated into the Act after the Board issued its instructions cannot affect either the validity of rule 33 or the force of the instructions issued by the Board of Revenue because neither Rule 33 nor the instructions issued were strictly in accordance with Section 10 (2). They merely lay down certain just and fair methods of approach to a difficult problem.17. The learned Solicitor-General appearing for the Revenue at one stage of his argument contended that the instructions issued by the Board of Revenue cannot have the Board of Revenue cannot have any binding effect and those instructions cannot abrogate or modify the provisions of the Act. But he did not contend that Rule 33 is ultra vires the Act. The instructions in question merely lay down the manner of applying Rule 33.18. Now coming to the question as to the effect of instructions issued under Section 5 (8) of the Act, this Court observed in Navnit Lal C Javeri v. A. K. Sen, Appellate Assist Commissioner of Income-tax, Bombay, 56 ITR 198 = (AIR 1965 SC 1375 );"It is clear that a circular of the kind which was issued by the Board would be binding on all officers and persons employed in the execution of the Act under Section 5 (8) of the Act. This circular pointed out to all the officers that it was likely that some of the companies might have advanced loans to their shareholders as a result of genuine transactions of loads, and the idea was not to affect such transactions and to bring them within the mischief of the new provision."19. The directions given in that circular clearly deviated from the provisions of the Act, yet this Court held that the circular was binding on the Income-tax Officer. | 1[ds]14. The authorities under the Act have proceeded on the basis that the computation of the income of the assessee has to be made on the second of the three bases mentioned in R. 33. This assumption appears to be incorrect. Admittedly the profits of the assessee company were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned in Rule 33 cannot be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned in Rule 33 is the relevant basis. In our opinion the High Court erred in adopting that approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression cannot alter the true position in law. It is obvious that that basis could not have been applied That being so the computation of the appellants income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the Income-tax Officer may consider to be reasonable or on the third basis i.e. "in such other manner as the Income-tax Officer may deem suitable.15. From the assessment orders made by the Income-tax Officer, it does not appears that in computing the taxable income of the assessee, he adopted the first basis. The most appropriate basis under which he could have computed the income was the have computed the income was the last basis viz. "in such other manner as the Income-tax Officer may deem suitable." While adopting that basis, the Income-tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis so long as that basis does not conflict either with Rule 33 or with the intructions or directions given by the Board of Revenue. The power given to the Income-tax Officer under that basis is a very wide power. That power is available not only to the Income-tax Officer but also to the Appellant Assistant Commissioner and the Tribunal. As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U. K. authorities,it cannot be said that the decision reached by the Tribunal was an unreasonable one. The Tribunals decision accords with the instructions given by the Board of Revenue.16. The fact the proviso to Section 10 (2) (vib) was incorporated into the Act after the Board issued its instructions cannot affect either the validity of rule 33 or the force of the instructions issued by the Board of Revenue because neither Rule 33 nor the instructions issued were strictly in accordance with Section 10 (2). They merely lay down certain just and fair methods of approach to a difficult problem.17. The learned Solicitor-General appearing for the Revenue at one stage of his argument contended that the instructions issued by the Board of Revenue cannot have the Board of Revenue cannot have any binding effect and those instructions cannot abrogate or modify the provisions of the Act. But he did not contend that Rule 33 is ultra vires the Act. The instructions in question merely lay down the manner of applying Ruleauthorities under the Act as well as the High Court have examined the facts of this case on the basis of rule 33. The second question referred to the High Court requires the High Court to express its opinion whethere on the facts and in the circumstances of the case, the Tribunal was right in allowing the claim of the assessee for the investment allowance under the U. K. Act in the computation of the total world income for the purpose of determining the assessees Indian income under rule 33. Under these circumstances, it would not be appropriate for us at this stage to ignore the earlier proceedings and examine the case afresh on a wholly different basis. Hence we have not gone into the question whether rule 33 is applicable to the facts of the case. We are proceeding on the assumption that it applies.It may be noted that in the case of a shipping company like the appellant before us, whose ships ply all over the world, it may not be possible to strictly comply with the provisions dealing with the levy ofare not identical in all countries. It may well night be impossible for a shipping company like the appellant to rigidly comply with the requirements of the laws in force in the numerous countries where it can be said to have earned income. Possibly to get over such a difficulty rule 33 was enacted. That is how the Revenue had proceeded in assessing the appellant.We were informed that the copies of that letters were sent to theCommissioners in the various States. From this letter, it is clear that the Board of Revenue had instructed the taxing authorities to take into consideration the investment allowance granted by the U. K. authorities in computing the taxable income of the British Shipping Companies. At this stage, it is necessary to mention that the proviso to Cl. (vib) of Section 10 (2) referred to earlier was incorporated into the Act sometime after the above instructions were issued by the Board of Revenue. | 1 | 3,141 | 1,000 | ### 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:
development rebate. In reply to that letter, the Board of Revenue wrote to them as follows :"Sub :- Assessment of British Shipping Companies on the basis of ratio certificates - Treatment of investment allowances granted in the U. K.I am directed to reply your letter dated 8th February 1957 on the above subject and to state that as the development rebate which corresponds to the investment allowance granted in the U. K. is allowed under the Indian Income-tax Act from the assessment year 1956-57, there is no objection to allow the investment allowances for the purpose of the computation of the Indian Income of British Shipping Companies. This would, however be subject to the condition that the investment allowance would be permitted as a deduction only to the extent to which the rate of the allowance granted in the U. K. is not greater than the rate of development rebate allowed under the Indian Income-tax Act."13. We were informed that the copies of that letters were sent to the Income-tax Commissioners in the various States. From this letter, it is clear that the Board of Revenue had instructed the taxing authorities to take into consideration the investment allowance granted by the U. K. authorities in computing the taxable income of the British Shipping Companies. At this stage, it is necessary to mention that the proviso to Cl. (vib) of Section 10 (2) referred to earlier was incorporated into the Act sometime after the above instructions were issued by the Board of Revenue.14. The authorities under the Act have proceeded on the basis that the computation of the income of the assessee has to be made on the second of the three bases mentioned in R. 33. This assumption appears to be incorrect. Admittedly the profits of the assessee company were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned in Rule 33 cannot be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned in Rule 33 is the relevant basis. In our opinion the High Court erred in adopting that approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression cannot alter the true position in law. It is obvious that that basis could not have been applied That being so the computation of the appellants income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the Income-tax Officer may consider to be reasonable or on the third basis i.e. "in such other manner as the Income-tax Officer may deem suitable.15. From the assessment orders made by the Income-tax Officer, it does not appears that in computing the taxable income of the assessee, he adopted the first basis. The most appropriate basis under which he could have computed the income was the have computed the income was the last basis viz. "in such other manner as the Income-tax Officer may deem suitable." While adopting that basis, the Income-tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis so long as that basis does not conflict either with Rule 33 or with the intructions or directions given by the Board of Revenue. The power given to the Income-tax Officer under that basis is a very wide power. That power is available not only to the Income-tax Officer but also to the Appellant Assistant Commissioner and the Tribunal. As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U. K. authorities,it cannot be said that the decision reached by the Tribunal was an unreasonable one. The Tribunals decision accords with the instructions given by the Board of Revenue.16. The fact the proviso to Section 10 (2) (vib) was incorporated into the Act after the Board issued its instructions cannot affect either the validity of rule 33 or the force of the instructions issued by the Board of Revenue because neither Rule 33 nor the instructions issued were strictly in accordance with Section 10 (2). They merely lay down certain just and fair methods of approach to a difficult problem.17. The learned Solicitor-General appearing for the Revenue at one stage of his argument contended that the instructions issued by the Board of Revenue cannot have the Board of Revenue cannot have any binding effect and those instructions cannot abrogate or modify the provisions of the Act. But he did not contend that Rule 33 is ultra vires the Act. The instructions in question merely lay down the manner of applying Rule 33.18. Now coming to the question as to the effect of instructions issued under Section 5 (8) of the Act, this Court observed in Navnit Lal C Javeri v. A. K. Sen, Appellate Assist Commissioner of Income-tax, Bombay, 56 ITR 198 = (AIR 1965 SC 1375 );"It is clear that a circular of the kind which was issued by the Board would be binding on all officers and persons employed in the execution of the Act under Section 5 (8) of the Act. This circular pointed out to all the officers that it was likely that some of the companies might have advanced loans to their shareholders as a result of genuine transactions of loads, and the idea was not to affect such transactions and to bring them within the mischief of the new provision."19. The directions given in that circular clearly deviated from the provisions of the Act, yet this Court held that the circular was binding on the Income-tax Officer.
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1
### Explanation:
14. The authorities under the Act have proceeded on the basis that the computation of the income of the assessee has to be made on the second of the three bases mentioned in R. 33. This assumption appears to be incorrect. Admittedly the profits of the assessee company were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned in Rule 33 cannot be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned in Rule 33 is the relevant basis. In our opinion the High Court erred in adopting that approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression cannot alter the true position in law. It is obvious that that basis could not have been applied That being so the computation of the appellants income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the Income-tax Officer may consider to be reasonable or on the third basis i.e. "in such other manner as the Income-tax Officer may deem suitable.15. From the assessment orders made by the Income-tax Officer, it does not appears that in computing the taxable income of the assessee, he adopted the first basis. The most appropriate basis under which he could have computed the income was the have computed the income was the last basis viz. "in such other manner as the Income-tax Officer may deem suitable." While adopting that basis, the Income-tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis so long as that basis does not conflict either with Rule 33 or with the intructions or directions given by the Board of Revenue. The power given to the Income-tax Officer under that basis is a very wide power. That power is available not only to the Income-tax Officer but also to the Appellant Assistant Commissioner and the Tribunal. As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U. K. authorities,it cannot be said that the decision reached by the Tribunal was an unreasonable one. The Tribunals decision accords with the instructions given by the Board of Revenue.16. The fact the proviso to Section 10 (2) (vib) was incorporated into the Act after the Board issued its instructions cannot affect either the validity of rule 33 or the force of the instructions issued by the Board of Revenue because neither Rule 33 nor the instructions issued were strictly in accordance with Section 10 (2). They merely lay down certain just and fair methods of approach to a difficult problem.17. The learned Solicitor-General appearing for the Revenue at one stage of his argument contended that the instructions issued by the Board of Revenue cannot have the Board of Revenue cannot have any binding effect and those instructions cannot abrogate or modify the provisions of the Act. But he did not contend that Rule 33 is ultra vires the Act. The instructions in question merely lay down the manner of applying Ruleauthorities under the Act as well as the High Court have examined the facts of this case on the basis of rule 33. The second question referred to the High Court requires the High Court to express its opinion whethere on the facts and in the circumstances of the case, the Tribunal was right in allowing the claim of the assessee for the investment allowance under the U. K. Act in the computation of the total world income for the purpose of determining the assessees Indian income under rule 33. Under these circumstances, it would not be appropriate for us at this stage to ignore the earlier proceedings and examine the case afresh on a wholly different basis. Hence we have not gone into the question whether rule 33 is applicable to the facts of the case. We are proceeding on the assumption that it applies.It may be noted that in the case of a shipping company like the appellant before us, whose ships ply all over the world, it may not be possible to strictly comply with the provisions dealing with the levy ofare not identical in all countries. It may well night be impossible for a shipping company like the appellant to rigidly comply with the requirements of the laws in force in the numerous countries where it can be said to have earned income. Possibly to get over such a difficulty rule 33 was enacted. That is how the Revenue had proceeded in assessing the appellant.We were informed that the copies of that letters were sent to theCommissioners in the various States. From this letter, it is clear that the Board of Revenue had instructed the taxing authorities to take into consideration the investment allowance granted by the U. K. authorities in computing the taxable income of the British Shipping Companies. At this stage, it is necessary to mention that the proviso to Cl. (vib) of Section 10 (2) referred to earlier was incorporated into the Act sometime after the above instructions were issued by the Board of Revenue.
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Punjab State Civil Supplies Corporation Ltd. And Anr Vs. M/S. Atwal Rice And General Mills | had been raised by the judgment debtor under Section 47 of the Code challenging the decree then it was necessary for the executing Court to deal with the objections and record its finding one way or other in accordance with law. Secondly, assuming that these objections were to be decided then also, in our opinion, none of them had any merit whatsoever and they simply deserved rejection at the outset. 30. Thirdly, all the objections referred above ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court. 31. In other words, having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree. If the executing Court had probed these objections then it would have travelled behind the decree, which was not permissible in law. An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree. 32. Fourthly, and apart from what is held above, by no stretch of imagination, the award/decree could be held fully satisfied on alleged making of the payment of Rs. 3,37,885/- by the respondents to the appellant. This factual finding to say the least is perverse to its extreme. 33. It is not in dispute that the awarded principal sum even without interest was for Rs. 10,24847.15. In these circumstances, we are at loss to understand as to how and on what basis, the executing Court could ever come to a conclusion that the entire money decree which was admittedly for more than Rs. 10 lacs could be held fully satisfied against making of so-called payment of Rs. 3,37,885/- by the respondents to the appellant assuming that such payment was held to had been made. 34. Order 21 Rule 1 of the Code prescribes the modes of paying money under the decree. Subclause( a) provides that the decreetal money has to be deposited in Court or by postal money order or through Bank. Clause(b) provides that amount, if paid out of court, then it has to be by postal money order or through Bank or by any mode where payment is evidenced in writing. If the payment is made under clause(b) then clause(c) prescribes the procedure as to how the money has to be paid and what details are required to be given by the judgment debtor in support of making payment. 35. Order 21 Rule 2 of the Code deals with the cases where the judgment debtor makes the payment of decreetal amount either full or part out of the Court to the decree holder. Sub-clause(1) empowers the decree holder to apply to the executing Court to get the amount received from the judgment debtor certified from the Court and it is only when the Court certifies the amount to have been paid, it can be adjusted against the decreetal sum. Clause(2) empowers the judgment debtor to apply to the executing Court and get the certification done by the Court of the amount paid by them to the decree holder after notice to the decree holder. Rule 2(A) provides that no payment made by the judgment debtor shall be adjusted unless he ensures compliance of sub clause (a) or (b) or (c). Rule 3 provides that if the Court does not certify the payment made by the judgment debtor then such payment shall not be recognized by any Court executing the decree for the purpose of giving adjustment to the judgment debtor against the decretal amount. 36. Keeping in view the mandatory requirements of Order 21 Rules 1 and 2 relating to payment of decretal dues made by the judgment debtor and applying the said provisions to the undisputed facts of this case, we have no hesitation in holding that the sum of Rs. 3,37,885/- which the respondents claimed to have paid to the appellant towards the decretal sum and which found acceptance to the two Courts below could never have been regarded as the payment made by the respondents to the appellant in conformity with the requirements of either Rule 1 or Rule 2 of Order 21. It is not in dispute that such payment was never certified by the Court as contemplated under Rule 2 of Order 21 at the instance of respondents or at the instance of the appellant. Indeed, there was neither any evidence to prove the factum of payment except one copy of the statement which also remained unproved nor any evidence was led to prove the certification done by the Court as required under Order 21 Rule 2 so as to recognize making of such payment by the respondents to the appellant. 37. We are, therefore, of the considered opinion that firstly, the execution application filed by the appellant (decree holder) for execution of the award/decree dated 01.06.2001 was maintainable and it should have been so held; Secondly, no amount was paid by the respondents to the appellant pursuant to the award/decree so as to enable the executing Court to record its full satisfaction in accordance with the provisions of Order 21 Rules 1 and 2 and lastly, all objections raised by the respondents under Section 47 of the Code against the award/decree are liable to be rejected as being wholly devoid of any merits. We, accordingly, hold so against the respondents. | 1[ds]16. Having heard learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and set aside the impugned order.Coming to the facts of the case, we find that firstly, the award is under the Act; Secondly, the award was challenged under Section 34 by the respondents before the Additional District Judge but the challenge failed vide order dated 03.11.2012 of the Additional District Judge, Jalandhar; Thirdly, the order dated 03.11.2012 attained finality because the matter was not pursued by the respondents in appeal to the High Court; Fourthly, the award, in consequence, also attained the finality by virtue of Sections 35 and 36 of the Act; Fifthly, the award was and continues to be binding on the appellant and the respondents; Sixthly, the award acquired the status of a decree of the civil court by virtue of Section 36 of the Act; Seventhly, the award has to be enforced for recovery of the awarded amount from the respondents like a decree of the civil court under the Code.It is aprinciple of law that the executing Court has to execute the decree as it is and it cannot go behind the decree. Likewise, the executing Court cannot hold any kind of factual inquiry which may have the effect of nullifying the decree itself but it can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect of rendering the decreeWe are constrained to observe that the executing Court and the High Court either did not understand the controversy or if understood, miserably failed to decide the same in accordance with law. Indeed, both the orders clearly show the totalof mind by the two Courts because both the Courts neither set out the facts much less properly nor dealt the issues arising in the case and nor applied the principle of law which governs the controversy.Both the orders are, therefore, wholly perverse, illegal and without jurisdiction. This we say for more than one reason as detailed by us hereinbelow.In the first place, none of the objections (nine) raised by the respondents were decided by the executing Court or/and the High Court. Indeed, they were not even referred to in the orders. If the objections had been raised by the judgment debtor under Section 47 of the Code challenging the decree then it was necessary for the executing Court to deal with the objections and record its finding one way or other in accordance with law. Secondly, assuming that these objections were to be decided then also, in our opinion, none of them had any merit whatsoever and they simply deserved rejection at the outset.Thirdly, all the objections referred above ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court.In other words, having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree. If the executing Court had probed these objections then it would have travelled behind the decree, which was not permissible in law. An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree.Fourthly, and apart from what is held above, by no stretch of imagination, the award/decree could be held fully satisfied on alleged making of the payment of Rs. 3,37,885/by the respondents to the appellant. This factual finding to say the least is perverse to its extreme.It is not in dispute that the awarded principal sum even without interest was for Rs. 10,24847.15. In these circumstances, we are at loss to understand as to how and on what basis, the executing Court could ever come to a conclusion that the entire money decree which was admittedly for more than Rs. 10 lacs could be held fully satisfied against making ofpayment of Rs. 3,37,885/by the respondents to the appellant assuming that such payment was held to had been made.Keeping in view the mandatory requirements of Order 21 Rules 1 and 2 relating to payment of decretal dues made by the judgment debtor and applying the said provisions to the undisputed facts of this case, we have no hesitation in holding that the sum of Rs. 3,37,885/which the respondents claimed to have paid to the appellant towards the decretal sum and which found acceptance to the two Courts below could never have been regarded as the payment made by the respondents to the appellant in conformity with the requirements of either Rule 1 or Rule 2 of Order 21. It is not in dispute that such payment was never certified by the Court as contemplated under Rule 2 of Order 21 at the instance of respondents or at the instance of the appellant. Indeed, there was neither any evidence to prove the factum of payment except one copy of the statement which also remained unproved nor any evidence was led to prove the certification done by the Court as required under Order 21 Rule 2 so as to recognize making of such payment by the respondents to the appellant.We are, therefore, of the considered opinion that firstly, the execution application filed by the appellant (decree holder) for execution of the award/decree dated 01.06.2001 was maintainable and it should have been so held; Secondly, no amount was paid by the respondents to the appellant pursuant to the award/decree so as to enable the executing Court to record its full satisfaction in accordance with the provisions of Order 21 Rules 1 and 2 and lastly, all objections raised by the respondents under Section 47 of the Code against the award/decree are liable to be rejected as being wholly devoid of any merits. We, accordingly, hold so against the respondents. | 1 | 3,947 | 1,156 | ### Instruction:
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had been raised by the judgment debtor under Section 47 of the Code challenging the decree then it was necessary for the executing Court to deal with the objections and record its finding one way or other in accordance with law. Secondly, assuming that these objections were to be decided then also, in our opinion, none of them had any merit whatsoever and they simply deserved rejection at the outset. 30. Thirdly, all the objections referred above ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court. 31. In other words, having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree. If the executing Court had probed these objections then it would have travelled behind the decree, which was not permissible in law. An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree. 32. Fourthly, and apart from what is held above, by no stretch of imagination, the award/decree could be held fully satisfied on alleged making of the payment of Rs. 3,37,885/- by the respondents to the appellant. This factual finding to say the least is perverse to its extreme. 33. It is not in dispute that the awarded principal sum even without interest was for Rs. 10,24847.15. In these circumstances, we are at loss to understand as to how and on what basis, the executing Court could ever come to a conclusion that the entire money decree which was admittedly for more than Rs. 10 lacs could be held fully satisfied against making of so-called payment of Rs. 3,37,885/- by the respondents to the appellant assuming that such payment was held to had been made. 34. Order 21 Rule 1 of the Code prescribes the modes of paying money under the decree. Subclause( a) provides that the decreetal money has to be deposited in Court or by postal money order or through Bank. Clause(b) provides that amount, if paid out of court, then it has to be by postal money order or through Bank or by any mode where payment is evidenced in writing. If the payment is made under clause(b) then clause(c) prescribes the procedure as to how the money has to be paid and what details are required to be given by the judgment debtor in support of making payment. 35. Order 21 Rule 2 of the Code deals with the cases where the judgment debtor makes the payment of decreetal amount either full or part out of the Court to the decree holder. Sub-clause(1) empowers the decree holder to apply to the executing Court to get the amount received from the judgment debtor certified from the Court and it is only when the Court certifies the amount to have been paid, it can be adjusted against the decreetal sum. Clause(2) empowers the judgment debtor to apply to the executing Court and get the certification done by the Court of the amount paid by them to the decree holder after notice to the decree holder. Rule 2(A) provides that no payment made by the judgment debtor shall be adjusted unless he ensures compliance of sub clause (a) or (b) or (c). Rule 3 provides that if the Court does not certify the payment made by the judgment debtor then such payment shall not be recognized by any Court executing the decree for the purpose of giving adjustment to the judgment debtor against the decretal amount. 36. Keeping in view the mandatory requirements of Order 21 Rules 1 and 2 relating to payment of decretal dues made by the judgment debtor and applying the said provisions to the undisputed facts of this case, we have no hesitation in holding that the sum of Rs. 3,37,885/- which the respondents claimed to have paid to the appellant towards the decretal sum and which found acceptance to the two Courts below could never have been regarded as the payment made by the respondents to the appellant in conformity with the requirements of either Rule 1 or Rule 2 of Order 21. It is not in dispute that such payment was never certified by the Court as contemplated under Rule 2 of Order 21 at the instance of respondents or at the instance of the appellant. Indeed, there was neither any evidence to prove the factum of payment except one copy of the statement which also remained unproved nor any evidence was led to prove the certification done by the Court as required under Order 21 Rule 2 so as to recognize making of such payment by the respondents to the appellant. 37. We are, therefore, of the considered opinion that firstly, the execution application filed by the appellant (decree holder) for execution of the award/decree dated 01.06.2001 was maintainable and it should have been so held; Secondly, no amount was paid by the respondents to the appellant pursuant to the award/decree so as to enable the executing Court to record its full satisfaction in accordance with the provisions of Order 21 Rules 1 and 2 and lastly, all objections raised by the respondents under Section 47 of the Code against the award/decree are liable to be rejected as being wholly devoid of any merits. We, accordingly, hold so against the respondents.
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Additional District Judge, Jalandhar; Thirdly, the order dated 03.11.2012 attained finality because the matter was not pursued by the respondents in appeal to the High Court; Fourthly, the award, in consequence, also attained the finality by virtue of Sections 35 and 36 of the Act; Fifthly, the award was and continues to be binding on the appellant and the respondents; Sixthly, the award acquired the status of a decree of the civil court by virtue of Section 36 of the Act; Seventhly, the award has to be enforced for recovery of the awarded amount from the respondents like a decree of the civil court under the Code.It is aprinciple of law that the executing Court has to execute the decree as it is and it cannot go behind the decree. Likewise, the executing Court cannot hold any kind of factual inquiry which may have the effect of nullifying the decree itself but it can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect of rendering the decreeWe are constrained to observe that the executing Court and the High Court either did not understand the controversy or if understood, miserably failed to decide the same in accordance with law. Indeed, both the orders clearly show the totalof mind by the two Courts because both the Courts neither set out the facts much less properly nor dealt the issues arising in the case and nor applied the principle of law which governs the controversy.Both the orders are, therefore, wholly perverse, illegal and without jurisdiction. This we say for more than one reason as detailed by us hereinbelow.In the first place, none of the objections (nine) raised by the respondents were decided by the executing Court or/and the High Court. Indeed, they were not even referred to in the orders. If the objections had been raised by the judgment debtor under Section 47 of the Code challenging the decree then it was necessary for the executing Court to deal with the objections and record its finding one way or other in accordance with law. Secondly, assuming that these objections were to be decided then also, in our opinion, none of them had any merit whatsoever and they simply deserved rejection at the outset.Thirdly, all the objections referred above ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court.In other words, having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree. If the executing Court had probed these objections then it would have travelled behind the decree, which was not permissible in law. An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree.Fourthly, and apart from what is held above, by no stretch of imagination, the award/decree could be held fully satisfied on alleged making of the payment of Rs. 3,37,885/by the respondents to the appellant. This factual finding to say the least is perverse to its extreme.It is not in dispute that the awarded principal sum even without interest was for Rs. 10,24847.15. In these circumstances, we are at loss to understand as to how and on what basis, the executing Court could ever come to a conclusion that the entire money decree which was admittedly for more than Rs. 10 lacs could be held fully satisfied against making ofpayment of Rs. 3,37,885/by the respondents to the appellant assuming that such payment was held to had been made.Keeping in view the mandatory requirements of Order 21 Rules 1 and 2 relating to payment of decretal dues made by the judgment debtor and applying the said provisions to the undisputed facts of this case, we have no hesitation in holding that the sum of Rs. 3,37,885/which the respondents claimed to have paid to the appellant towards the decretal sum and which found acceptance to the two Courts below could never have been regarded as the payment made by the respondents to the appellant in conformity with the requirements of either Rule 1 or Rule 2 of Order 21. It is not in dispute that such payment was never certified by the Court as contemplated under Rule 2 of Order 21 at the instance of respondents or at the instance of the appellant. Indeed, there was neither any evidence to prove the factum of payment except one copy of the statement which also remained unproved nor any evidence was led to prove the certification done by the Court as required under Order 21 Rule 2 so as to recognize making of such payment by the respondents to the appellant.We are, therefore, of the considered opinion that firstly, the execution application filed by the appellant (decree holder) for execution of the award/decree dated 01.06.2001 was maintainable and it should have been so held; Secondly, no amount was paid by the respondents to the appellant pursuant to the award/decree so as to enable the executing Court to record its full satisfaction in accordance with the provisions of Order 21 Rules 1 and 2 and lastly, all objections raised by the respondents under Section 47 of the Code against the award/decree are liable to be rejected as being wholly devoid of any merits. We, accordingly, hold so against the respondents.
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Union of India & Ors Vs. G. Ramesh | Dr Dhananjaya Y Chandrachud, J.1. Delay condoned.2. Leave granted.3. This appeal arises from a judgment and order of a Division Bench of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh dated 8 February 2018.4. The Superintendent of Post Offices, Hanamkonda issued a notification on 4 November 2013 inviting applications for conducting a departmental examination to the cadre of postman. The result of the examination was declared on 20 December 2013. A candidate by the name of G Vijender was declared to be selected and was posted as a postman. The respondent was second in the order of merit in the Select List. Upon receiving a complaint that G Vijender had obtained selection by adopting fraudulent means, the employee was placed under suspension on 24 January 2014. The respondent moved the Central Administrative Tribunal (Tribunal) at Hyderabad seeking a direction for being posted in place of G Vijender. The Tribunal dismissed the Original Application as premature. G Vijender was dismissed from service after a departmental enquiry on 29 April 2016. The respondent filed an Original Application before the Tribunal in which an order was passed on 25 November 2016 to consider his request in accordance with the rules. Following this order, the representation of the respondent to appoint him as a postman was rejected, upon which he moved the Tribunal afresh. The Tribunal, by its order dated 9 November 2017, came to the conclusion that the respondent had a right to be appointed to the post of postman and that upon the dismissal of the candidate who had been duly selected and appointed, the respondent ought to be appointed. This order of the Tribunal has been affirmed by the High Court while dismissing a writ petition filed by the appellants. 5. Mr Vikramjit Banerjee, learned Additional Solicitor General has relied upon a decision of a two-judge Bench of this Court in Thrissur District Co-operative Bank Limited v Delson Davis P 2002 (2) SLR 410. The Additional Solicitor General submitted that once the process of selection had been completed with the appointment of G Vijender, the Select List stood exhausted. Hence, the subsequent dismissal of the appointed candidate from service would not result in the revival of the Select List. Hence, it was urged that both the Tribunal and the High Court have erred in coming to the conclusion that the respondent had a vested right to appointment. 6. On the other hand, it has been urged on behalf of the respondent by Mr M Venkanna, learned counsel, that the candidate who had been appointed had secured his appointment through fraudulent means and, hence, the appointment was void ab initio. Learned counsel submitted that it was, strictly speaking, not necessary for the Department to hold a departmental enquiry and a simple order of termination with a notice to show cause would have sufficed. Hence, it was urged that it was the respondent, who was second in the order of merit, who should have been appointed.7. The facts, as they have emerged on record indicate that the selection process which was initiated in pursuance of the notification dated 4 November 2013 culminated in the order of appointment of G Vijender. Subsequently, his services came to be terminated following the order of dismissal upon the conclusion of the disciplinary enquiry. Once a candidate had been selected upon the conclusion of the selection process and was appointed to the post, the Select List stood exhausted. There was one vacancy. The subsequent dismissal from service of the appointed candidate in 2016 would not either revive the Select List or result in the appointment of the respondent.8. This principle emerges from the judgment of this Court in Thrissur District Co-operative Bank Limited where it was held:?When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma and Anr. [JT 2001 (9) SC 266 ]? 9. Adopting the above view, we have come to the conclusion that the impugned orders of the Tribunal and the High Court cannot be sustained. | 1[ds]7. The facts, as they have emerged on record indicate that the selection process which was initiated in pursuance of the notification dated 4 November 2013 culminated in the order of appointment of G Vijender. Subsequently, his services came to be terminated following the order of dismissal upon the conclusion of the disciplinary enquiry. Once a candidate had been selected upon the conclusion of the selection process and was appointed to the post, the Select List stood exhausted. There was one vacancy. The subsequent dismissal from service of the appointed candidate in 2016 would not either revive the Select List or result in the appointment of the respondent8. This principle emerges from the judgment of this Court in Thrissur District Co-operative Bank Limited where it was held:?When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma and Anr. [JT 2001 (9) SC 266 ]?9. Adopting the above view, we have come to the conclusion that the impugned orders of the Tribunal and the High Court cannot be sustained. | 1 | 803 | 258 | ### Instruction:
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Dr Dhananjaya Y Chandrachud, J.1. Delay condoned.2. Leave granted.3. This appeal arises from a judgment and order of a Division Bench of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh dated 8 February 2018.4. The Superintendent of Post Offices, Hanamkonda issued a notification on 4 November 2013 inviting applications for conducting a departmental examination to the cadre of postman. The result of the examination was declared on 20 December 2013. A candidate by the name of G Vijender was declared to be selected and was posted as a postman. The respondent was second in the order of merit in the Select List. Upon receiving a complaint that G Vijender had obtained selection by adopting fraudulent means, the employee was placed under suspension on 24 January 2014. The respondent moved the Central Administrative Tribunal (Tribunal) at Hyderabad seeking a direction for being posted in place of G Vijender. The Tribunal dismissed the Original Application as premature. G Vijender was dismissed from service after a departmental enquiry on 29 April 2016. The respondent filed an Original Application before the Tribunal in which an order was passed on 25 November 2016 to consider his request in accordance with the rules. Following this order, the representation of the respondent to appoint him as a postman was rejected, upon which he moved the Tribunal afresh. The Tribunal, by its order dated 9 November 2017, came to the conclusion that the respondent had a right to be appointed to the post of postman and that upon the dismissal of the candidate who had been duly selected and appointed, the respondent ought to be appointed. This order of the Tribunal has been affirmed by the High Court while dismissing a writ petition filed by the appellants. 5. Mr Vikramjit Banerjee, learned Additional Solicitor General has relied upon a decision of a two-judge Bench of this Court in Thrissur District Co-operative Bank Limited v Delson Davis P 2002 (2) SLR 410. The Additional Solicitor General submitted that once the process of selection had been completed with the appointment of G Vijender, the Select List stood exhausted. Hence, the subsequent dismissal of the appointed candidate from service would not result in the revival of the Select List. Hence, it was urged that both the Tribunal and the High Court have erred in coming to the conclusion that the respondent had a vested right to appointment. 6. On the other hand, it has been urged on behalf of the respondent by Mr M Venkanna, learned counsel, that the candidate who had been appointed had secured his appointment through fraudulent means and, hence, the appointment was void ab initio. Learned counsel submitted that it was, strictly speaking, not necessary for the Department to hold a departmental enquiry and a simple order of termination with a notice to show cause would have sufficed. Hence, it was urged that it was the respondent, who was second in the order of merit, who should have been appointed.7. The facts, as they have emerged on record indicate that the selection process which was initiated in pursuance of the notification dated 4 November 2013 culminated in the order of appointment of G Vijender. Subsequently, his services came to be terminated following the order of dismissal upon the conclusion of the disciplinary enquiry. Once a candidate had been selected upon the conclusion of the selection process and was appointed to the post, the Select List stood exhausted. There was one vacancy. The subsequent dismissal from service of the appointed candidate in 2016 would not either revive the Select List or result in the appointment of the respondent.8. This principle emerges from the judgment of this Court in Thrissur District Co-operative Bank Limited where it was held:?When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma and Anr. [JT 2001 (9) SC 266 ]? 9. Adopting the above view, we have come to the conclusion that the impugned orders of the Tribunal and the High Court cannot be sustained.
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7. The facts, as they have emerged on record indicate that the selection process which was initiated in pursuance of the notification dated 4 November 2013 culminated in the order of appointment of G Vijender. Subsequently, his services came to be terminated following the order of dismissal upon the conclusion of the disciplinary enquiry. Once a candidate had been selected upon the conclusion of the selection process and was appointed to the post, the Select List stood exhausted. There was one vacancy. The subsequent dismissal from service of the appointed candidate in 2016 would not either revive the Select List or result in the appointment of the respondent8. This principle emerges from the judgment of this Court in Thrissur District Co-operative Bank Limited where it was held:?When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma and Anr. [JT 2001 (9) SC 266 ]?9. Adopting the above view, we have come to the conclusion that the impugned orders of the Tribunal and the High Court cannot be sustained.
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J.K. Synthetics Ltd Vs. K.P. Agrawal | In Hombe Gowda Educational Trust v. State of Karnataka [2006 (1) SCC 430 ], this Court stressed the need to give importance to discipline at the workplace. This Court observed: "This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity." 24. In Mahindra and Mahindra Ltd. vs. N. B. Narawade [2005 (3) SCC 134 ], this Court considered a case where a workman used abusive and filthy language against his superior officer, in the presence of his subordinates. He was terminated after conducting an inquiry. Labour Court found the punishment to be excessive and in exercise of power under section 11A of the ID Act, imposed a lesser punishment. This Court held that the misconduct cannot be termed to be an indiscipline calling for lesser punishment than termination. A similar view was taken in Orissa Cement vs. Adikand Sahu [1960 (1) LLJ 518 ] and New Shorrock Mills vs. Mahesh Bhai T Rao [1996 (6) SCC 590 ]. 25. In U.P. SRTC vs. Subhash Chandra Sharma [2000 (3) SCC 324 ], this Court held that the punishment of removal, for abusing and threatening another employee, was not shockingly disproportionate to the gravity of the offence. In that case also, only one among three charges was established and the Labour Court had interfered with the punishment, which was upheld by the High Court. Reversing such decision, this Court held: "The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent, from the service. The charge against the respondent was that he, in drunken state, along with a conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in miscarriage of justice." 26. In Bharat Forge Co. Ltd., vs. Uttam Manohar Nakate [2005 (2) SCC 489 ], M.P. Electricity Board vs. Jagdish Chandra Sharma [2005 (3) SCC 401 ], and Regional Manager, Rajasthan State Road Corporation vs. Ghanshayam Sharma [2002 (1) LLJ 234], this Court held that power under section 11A of ID Act (or under similar provisions) cannot be used to interfere with the quantum of punishment, on irrational or extraneous factors, or on compassionate grounds. This Court also observed that though section 11A gives the jurisdiction and power to the labour court to interfere with the quantum of punishment, the discretion has to be used judiciously and not capriciously. This Court observed that harsh punishment wholly disproportionate the charge should be the criterion for interference. 27. In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference. Re: Question (iv) 28. It is true that when the employer challenged the award of the labour court and sought stay of the award, the High Court only stayed the order dated 29.6.1983 in regard to the back-wages but did not stay the award dated 08.3.1983 directing reinstatement; and that if he had been reinstated in 1983, he would have served till 31.3.1991 when he attained the age of superannuation. The learned counsel for the employee made a submission before the High Court at the final hearing that in spite of the award directing reinstatement not being stayed, he was not reinstated. On the said submission, the High Court held that the employer had wilfully violated the lawful order and was not entitled to exercise of equitable discretion under Article 226/227. Firstly, the assumption that there was a lawful order or that there was wilful violation thereof is not sound. Further, the employer was not given an opportunity to explain why the employee was not reinstated. In fact, the contention of employer is that the first respondent did not report back to service, even though it was ready to reinstate him subject to final decision. Be that as it may. The mere fact that the first respondent was not reinstated in pursuance of the award of the Labour Court cannot result in dismissal of the writ petition challenging the award.Conclusion: | 1[ds]8. A careful reading of section 6(6) and the two decisions shows that the two decisions considered two different situations. In Tulsipur Sugar Company, this Court found that the reference to the Labour Court consisted of two parts. The award answered only the first part and had omitted to answer the second (consequential) part. While modifying the award on an application under section 6(6), the Labour Court neither upset nor altered any of the findings recorded in its original award, but only answered the second part of the reference, which had earlier been omitted. Therefore, this Court held that such correction was permissible. On the other hand in Imtiaz Hussain, the Labour Court, in its award had specifically refusedto the employee on the ground that his name was not in the list of permanent employees. But on an application under section 6(6), itthe issue and held that though his name was not in the list of permanent employees, he was entitled to payment of salary and allowances from the date of termination till the date of reinstatement with continuity of service. In Tulsipur Sugar Company, there was a correction of an omission which fell within section 6(6). In Imtiaz Hussain, there was a review of the original order which of course, was impermissible. We may now summarize the scope of section 6(6) of the Act thus:a) If there is an arithmetical or clerical or typographical error in the order, it can be corrected.b) Where the court had said something which it did not intend to say or omitted something which it intended to say, by reason of any accidental slip/omission on the part of the court, such inadvertent mistake can be corrected.c) The power cannot be exercised where the matter involves rehearing on merits, or reconsideration of questions of fact or law, or consideration of fresh material, or new arguments which were not advanced when the original order was made. Nor can the power be exercised to change the reasoning and conclusions.9. In this case, the reference to Labour Court consisted of two partswhether the termination of the workmen was proper and legal, andanswer was in the negative, then the benefits or compensation to which the workmen was entitled. The award originally made, answered the first part in the negative, but did not answer the consequential second part of the reference. In fact the award ended rather abruptly. On an application being made under section 6(6), the Labour Court recorded that it had accidentally omitted to answer the second part of the reference and rectified the omission by adding a paragraph. This case, therefore, squarely falls under Tulsipur Sugar (supra). We are of the view that the Labour Court had the power to amend the award.In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all.s takes us to the next question as to whether the Labour Court was justified at all in interfering with the punishment of dismissal.The Labour Court held that one serious charge was proved, another charge was not proved and in regard to the third charge gave benefit of doubt to the employee. The Labour Court also relied on the decisions of this Court in Rama Kant Misra vs. State of U.P. [AIR 1982 SC 952], wherein it was held that the punishment of dismissal was excessive where the employee was found to have uttered indecent words and used abusive language and substituted it by the lesser punishment of stoppage of two annual increments. The said decision depended on its special facts and may not apply to this case. The recent trend in regard to scope of interference with punishment in matters involving discipline at the workplace has been different. We may refer to some of the recent decisions.In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference.It is true that when the employer challenged the award of the labour court and sought stay of the award, the High Court only stayed the order dated 29.6.1983 in regard to thebut did not stay the award dated 08.3.1983 directing reinstatement; and that if he had been reinstated in 1983, he would have served till 31.3.1991 when he attained the age of superannuation. The learned counsel for the employee made a submission before the High Court at the final hearing that in spite of the award directing reinstatement not being stayed, he was not reinstated. On the said submission, the High Court held that the employer had wilfully violated the lawful order and was not entitled to exercise of equitable discretion under Article 226/227. Firstly, the assumption that there was a lawful order or that there was wilful violation thereof is not sound. Further, the employer was not given an opportunity to explain why the employee was not reinstated. In fact, the contention of employer is that the first respondent did not report back to service, even though it was ready to reinstate him subject to final decision. Be that as it may. The mere fact that the first respondent was not reinstated in pursuance of the award of the Labour Court cannot result in dismissal of the writ petition challenging the award. | 1 | 7,553 | 1,138 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
In Hombe Gowda Educational Trust v. State of Karnataka [2006 (1) SCC 430 ], this Court stressed the need to give importance to discipline at the workplace. This Court observed: "This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity." 24. In Mahindra and Mahindra Ltd. vs. N. B. Narawade [2005 (3) SCC 134 ], this Court considered a case where a workman used abusive and filthy language against his superior officer, in the presence of his subordinates. He was terminated after conducting an inquiry. Labour Court found the punishment to be excessive and in exercise of power under section 11A of the ID Act, imposed a lesser punishment. This Court held that the misconduct cannot be termed to be an indiscipline calling for lesser punishment than termination. A similar view was taken in Orissa Cement vs. Adikand Sahu [1960 (1) LLJ 518 ] and New Shorrock Mills vs. Mahesh Bhai T Rao [1996 (6) SCC 590 ]. 25. In U.P. SRTC vs. Subhash Chandra Sharma [2000 (3) SCC 324 ], this Court held that the punishment of removal, for abusing and threatening another employee, was not shockingly disproportionate to the gravity of the offence. In that case also, only one among three charges was established and the Labour Court had interfered with the punishment, which was upheld by the High Court. Reversing such decision, this Court held: "The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent, from the service. The charge against the respondent was that he, in drunken state, along with a conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in miscarriage of justice." 26. In Bharat Forge Co. Ltd., vs. Uttam Manohar Nakate [2005 (2) SCC 489 ], M.P. Electricity Board vs. Jagdish Chandra Sharma [2005 (3) SCC 401 ], and Regional Manager, Rajasthan State Road Corporation vs. Ghanshayam Sharma [2002 (1) LLJ 234], this Court held that power under section 11A of ID Act (or under similar provisions) cannot be used to interfere with the quantum of punishment, on irrational or extraneous factors, or on compassionate grounds. This Court also observed that though section 11A gives the jurisdiction and power to the labour court to interfere with the quantum of punishment, the discretion has to be used judiciously and not capriciously. This Court observed that harsh punishment wholly disproportionate the charge should be the criterion for interference. 27. In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference. Re: Question (iv) 28. It is true that when the employer challenged the award of the labour court and sought stay of the award, the High Court only stayed the order dated 29.6.1983 in regard to the back-wages but did not stay the award dated 08.3.1983 directing reinstatement; and that if he had been reinstated in 1983, he would have served till 31.3.1991 when he attained the age of superannuation. The learned counsel for the employee made a submission before the High Court at the final hearing that in spite of the award directing reinstatement not being stayed, he was not reinstated. On the said submission, the High Court held that the employer had wilfully violated the lawful order and was not entitled to exercise of equitable discretion under Article 226/227. Firstly, the assumption that there was a lawful order or that there was wilful violation thereof is not sound. Further, the employer was not given an opportunity to explain why the employee was not reinstated. In fact, the contention of employer is that the first respondent did not report back to service, even though it was ready to reinstate him subject to final decision. Be that as it may. The mere fact that the first respondent was not reinstated in pursuance of the award of the Labour Court cannot result in dismissal of the writ petition challenging the award.Conclusion:
### Response:
1
### Explanation:
two different situations. In Tulsipur Sugar Company, this Court found that the reference to the Labour Court consisted of two parts. The award answered only the first part and had omitted to answer the second (consequential) part. While modifying the award on an application under section 6(6), the Labour Court neither upset nor altered any of the findings recorded in its original award, but only answered the second part of the reference, which had earlier been omitted. Therefore, this Court held that such correction was permissible. On the other hand in Imtiaz Hussain, the Labour Court, in its award had specifically refusedto the employee on the ground that his name was not in the list of permanent employees. But on an application under section 6(6), itthe issue and held that though his name was not in the list of permanent employees, he was entitled to payment of salary and allowances from the date of termination till the date of reinstatement with continuity of service. In Tulsipur Sugar Company, there was a correction of an omission which fell within section 6(6). In Imtiaz Hussain, there was a review of the original order which of course, was impermissible. We may now summarize the scope of section 6(6) of the Act thus:a) If there is an arithmetical or clerical or typographical error in the order, it can be corrected.b) Where the court had said something which it did not intend to say or omitted something which it intended to say, by reason of any accidental slip/omission on the part of the court, such inadvertent mistake can be corrected.c) The power cannot be exercised where the matter involves rehearing on merits, or reconsideration of questions of fact or law, or consideration of fresh material, or new arguments which were not advanced when the original order was made. Nor can the power be exercised to change the reasoning and conclusions.9. In this case, the reference to Labour Court consisted of two partswhether the termination of the workmen was proper and legal, andanswer was in the negative, then the benefits or compensation to which the workmen was entitled. The award originally made, answered the first part in the negative, but did not answer the consequential second part of the reference. In fact the award ended rather abruptly. On an application being made under section 6(6), the Labour Court recorded that it had accidentally omitted to answer the second part of the reference and rectified the omission by adding a paragraph. This case, therefore, squarely falls under Tulsipur Sugar (supra). We are of the view that the Labour Court had the power to amend the award.In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all.s takes us to the next question as to whether the Labour Court was justified at all in interfering with the punishment of dismissal.The Labour Court held that one serious charge was proved, another charge was not proved and in regard to the third charge gave benefit of doubt to the employee. The Labour Court also relied on the decisions of this Court in Rama Kant Misra vs. State of U.P. [AIR 1982 SC 952], wherein it was held that the punishment of dismissal was excessive where the employee was found to have uttered indecent words and used abusive language and substituted it by the lesser punishment of stoppage of two annual increments. The said decision depended on its special facts and may not apply to this case. The recent trend in regard to scope of interference with punishment in matters involving discipline at the workplace has been different. We may refer to some of the recent decisions.In this case, we have already found that the charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference.It is true that when the employer challenged the award of the labour court and sought stay of the award, the High Court only stayed the order dated 29.6.1983 in regard to thebut did not stay the award dated 08.3.1983 directing reinstatement; and that if he had been reinstated in 1983, he would have served till 31.3.1991 when he attained the age of superannuation. The learned counsel for the employee made a submission before the High Court at the final hearing that in spite of the award directing reinstatement not being stayed, he was not reinstated. On the said submission, the High Court held that the employer had wilfully violated the lawful order and was not entitled to exercise of equitable discretion under Article 226/227. Firstly, the assumption that there was a lawful order or that there was wilful violation thereof is not sound. Further, the employer was not given an opportunity to explain why the employee was not reinstated. In fact, the contention of employer is that the first respondent did not report back to service, even though it was ready to reinstate him subject to final decision. Be that as it may. The mere fact that the first respondent was not reinstated in pursuance of the award of the Labour Court cannot result in dismissal of the writ petition challenging the award.
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M/s. Rohini Traders Vs. M/s. J.K. Lakshmi Cement Ltd | gathered that the witness had brought all the documents pertaining to the notice dated 05.07.2006 with respect to Item Nos. 3-6 and the other documents were with the appellant and the witness was also cross examined in respect of the documents so produced. The review application was, therefore, dismissed.(h) Against the said orders, the appellant has preferred these appeals before this Court. 3) Heard Shri Sunil Kumar, learned senior counsel for the appellant and Shri M.L. Lahoty, learned counsel for the respondent-Company. Contentions: 4) Learned senior counsel for the appellant submitted that the respondent-Company had not filed any document before the trial Court in support of its claim made in the written statement. Further, it had not complied with the notice dated 05.07.2006 under Order XII Rule 8 of the Code requiring it to place certain documents before the Court at the time of first date of hearing and, therefore, an adverse inference ought to have been drawn and which was rightly drawn by the trial Court. According to him, the High Court ought not to have remanded the matter for fresh trial only on the ground that such documents were produced before the Court by DW-1. 5) Learned senior counsel has relied upon a decision of the Lahore High Court in Badri Parshad and Another vs. Shanti Lal Seth and Others AIR 1941 Lahore 228 and submitted that the documents so produced are to be given in evidence and must be admitted in toto. He further relied on a decision of the Allahabad High Court in Union of India vs. Firm Vishudh Ghee Vyopar Mandal AIR 1953 All. 689 wherein it was held that the provision of Order XII Rule 8 of the Code refers to notice to produce documents at the time of the hearing, so that if they are not produced, the party calling for them may give secondary evidence of the same. According to him, as the respondent-Company has failed to produce the documents mentioned in the notice dated 05.07.2006 under Order XII Rule 8 of the Code, the trial Court had rightly drawn an adverse inference and decreed the suit on the basis of the evidence on record. 6) Learned counsel for the respondent-Company, however, submitted that even though the respondent-Company had not filed any document before the trial Court yet it produced the same before the Court as asked for in the notice dated 05.07.2006 and DW-1 was also cross-examined by the appellant. Therefore, the trial Court ought not to have discarded the documents so produced by the respondent-Company. The High Court had rightly remanded the matter for fresh trial. Discussion: 7) We have gone through the materials on record and find that even though the respondent-Company had not brought on record any document before the trial Court yet it had produced certain documents mentioned at Item Nos. 3-6 in the notice dated 05.07.2006 and DW-1 was also cross-examined with regard to the same. The relevant portion of the statement made by Shri R.K. Gupta (DW-1) in the cross-examination is as under:- "However, I have brought the documents required by the plaintiff in terms of the notice dated 05.07.2006 vide Item Nos. 3 to 6 and the record in terms of Item Nos. 1 and 2 of the said notice would be available with the plaintiff.""I cannot say if payment to M/s Rohini Traders was being made on transaction to transaction basis or consolidatedly. I have seen the statement of account from which it is clear that payments have been made both ways i.e., transaction to transaction as well as month to month. It is correct that the last entry in the statement of account is dated 30.04.2003. It is correct that till date we have not filed any suit against the plaintiff for recovery." The claim of the appellant is that if the facts mentioned in the said documents are taken into consideration, it may just be possible that the claim of the appellant may not stand. 8) At this juncture, it is relevant to quote Order XII Rule 8 of the Code which is as under:- "Notice to produce documents.--Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served." 9) From a reading of the aforesaid provision as also the law settled on this aspect, we are of the view that it was the duty of appellant herein to get the documents produced by the respondent-Company under Order XII Rule 8 of the Code exhibited in the suit proceedings so that a true and correct finding either way could have been recorded by the trial Court. It is not in dispute that the appellant did not take any step to get those documents marked and exhibited before the trial Court.10) The object of Order XII Rule 8 of the Code is to facilitate the plaintiff or any other party to get a document on record which is not in their possession or in possession of the other party. If a document has been produced then it is the duty of the party who has asked for such production to get it placed on record. If, however, the said document is not placed on record, then adverse inference against the party who has produced the same cannot be drawn, more so, when the party who has produced the said document before the Court has been cross-examined vis-`-vis that document.11) In our considered opinion, the High Court was right in setting aside the judgment and decree passed by the trial Court and remanding the matter for fresh decision. The directions given by the High Court do not call for any interference. | 0[ds]9) From a reading of the aforesaid provision as also the law settled on this aspect, we are of the view that it was the duty of appellant herein to get the documents produced by theunder Order XII Rule 8 of the Code exhibited in the suit proceedings so that a true and correct finding either way could have been recorded by the trial Court. It is not in dispute that the appellant did not take any step to get those documents marked and exhibited before the trial Court.10) The object of Order XII Rule 8 of the Code is to facilitate the plaintiff or any other party to get a document on record which is not in their possession or in possession of the other party. If a document has been produced then it is the duty of the party who has asked for such production to get it placed on record. If, however, the said document is not placed on record, then adverse inference against the party who has produced the same cannot be drawn, more so, when the party who has produced the said document before the Court has beens that document.11) In our considered opinion, the High Court was right in setting aside the judgment and decree passed by the trial Court and remanding the matter for fresh decision. The directions given by the High Court do not call for any interference. | 0 | 1,896 | 256 | ### 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:
gathered that the witness had brought all the documents pertaining to the notice dated 05.07.2006 with respect to Item Nos. 3-6 and the other documents were with the appellant and the witness was also cross examined in respect of the documents so produced. The review application was, therefore, dismissed.(h) Against the said orders, the appellant has preferred these appeals before this Court. 3) Heard Shri Sunil Kumar, learned senior counsel for the appellant and Shri M.L. Lahoty, learned counsel for the respondent-Company. Contentions: 4) Learned senior counsel for the appellant submitted that the respondent-Company had not filed any document before the trial Court in support of its claim made in the written statement. Further, it had not complied with the notice dated 05.07.2006 under Order XII Rule 8 of the Code requiring it to place certain documents before the Court at the time of first date of hearing and, therefore, an adverse inference ought to have been drawn and which was rightly drawn by the trial Court. According to him, the High Court ought not to have remanded the matter for fresh trial only on the ground that such documents were produced before the Court by DW-1. 5) Learned senior counsel has relied upon a decision of the Lahore High Court in Badri Parshad and Another vs. Shanti Lal Seth and Others AIR 1941 Lahore 228 and submitted that the documents so produced are to be given in evidence and must be admitted in toto. He further relied on a decision of the Allahabad High Court in Union of India vs. Firm Vishudh Ghee Vyopar Mandal AIR 1953 All. 689 wherein it was held that the provision of Order XII Rule 8 of the Code refers to notice to produce documents at the time of the hearing, so that if they are not produced, the party calling for them may give secondary evidence of the same. According to him, as the respondent-Company has failed to produce the documents mentioned in the notice dated 05.07.2006 under Order XII Rule 8 of the Code, the trial Court had rightly drawn an adverse inference and decreed the suit on the basis of the evidence on record. 6) Learned counsel for the respondent-Company, however, submitted that even though the respondent-Company had not filed any document before the trial Court yet it produced the same before the Court as asked for in the notice dated 05.07.2006 and DW-1 was also cross-examined by the appellant. Therefore, the trial Court ought not to have discarded the documents so produced by the respondent-Company. The High Court had rightly remanded the matter for fresh trial. Discussion: 7) We have gone through the materials on record and find that even though the respondent-Company had not brought on record any document before the trial Court yet it had produced certain documents mentioned at Item Nos. 3-6 in the notice dated 05.07.2006 and DW-1 was also cross-examined with regard to the same. The relevant portion of the statement made by Shri R.K. Gupta (DW-1) in the cross-examination is as under:- "However, I have brought the documents required by the plaintiff in terms of the notice dated 05.07.2006 vide Item Nos. 3 to 6 and the record in terms of Item Nos. 1 and 2 of the said notice would be available with the plaintiff.""I cannot say if payment to M/s Rohini Traders was being made on transaction to transaction basis or consolidatedly. I have seen the statement of account from which it is clear that payments have been made both ways i.e., transaction to transaction as well as month to month. It is correct that the last entry in the statement of account is dated 30.04.2003. It is correct that till date we have not filed any suit against the plaintiff for recovery." The claim of the appellant is that if the facts mentioned in the said documents are taken into consideration, it may just be possible that the claim of the appellant may not stand. 8) At this juncture, it is relevant to quote Order XII Rule 8 of the Code which is as under:- "Notice to produce documents.--Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served." 9) From a reading of the aforesaid provision as also the law settled on this aspect, we are of the view that it was the duty of appellant herein to get the documents produced by the respondent-Company under Order XII Rule 8 of the Code exhibited in the suit proceedings so that a true and correct finding either way could have been recorded by the trial Court. It is not in dispute that the appellant did not take any step to get those documents marked and exhibited before the trial Court.10) The object of Order XII Rule 8 of the Code is to facilitate the plaintiff or any other party to get a document on record which is not in their possession or in possession of the other party. If a document has been produced then it is the duty of the party who has asked for such production to get it placed on record. If, however, the said document is not placed on record, then adverse inference against the party who has produced the same cannot be drawn, more so, when the party who has produced the said document before the Court has been cross-examined vis-`-vis that document.11) In our considered opinion, the High Court was right in setting aside the judgment and decree passed by the trial Court and remanding the matter for fresh decision. The directions given by the High Court do not call for any interference.
### Response:
0
### Explanation:
9) From a reading of the aforesaid provision as also the law settled on this aspect, we are of the view that it was the duty of appellant herein to get the documents produced by theunder Order XII Rule 8 of the Code exhibited in the suit proceedings so that a true and correct finding either way could have been recorded by the trial Court. It is not in dispute that the appellant did not take any step to get those documents marked and exhibited before the trial Court.10) The object of Order XII Rule 8 of the Code is to facilitate the plaintiff or any other party to get a document on record which is not in their possession or in possession of the other party. If a document has been produced then it is the duty of the party who has asked for such production to get it placed on record. If, however, the said document is not placed on record, then adverse inference against the party who has produced the same cannot be drawn, more so, when the party who has produced the said document before the Court has beens that document.11) In our considered opinion, the High Court was right in setting aside the judgment and decree passed by the trial Court and remanding the matter for fresh decision. The directions given by the High Court do not call for any interference.
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Narendra Vs. The State Of Uttar Pradesh | the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice. Purposive interpretation is given to subserve the ends of justice particularly when the cases of vulnerable groups are decided. The Court has to keep in mind the `problem solving approach by adopting therapeutic approaches to the maximum extent the law permits rather than `just deciding cases, thereby bridging the gap between law and life, between law and justice. The notion of access to justice is to be taken in a broader sense. The objective is to render justice to the needy and that means fair solutions to the conflict thereby providing real access to `justice.11. Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as `Reflective Equilibrium. The method of Reflective Equilibrium was first introduced by Nelson Goodman in `Fact, Fiction and Forecast (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the concept of `Justice as Fairness. While on the one hand, we have the doctrine of `justice as fairness, as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of `Distributive Justice propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawlss notion of `Justice as Fairness with the notions of `Distributive Justice, to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society.12. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs. 115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount.13. It is the aforesaid weighty consideration which justify award of compensation to the appellants at the rate of Rs. 297/- per square yards. Though, the aforesaid reasons are enough to allow the appeals, in the present case, there is yet another additional circumstance which justifies this outcome.14. This Court in Civil Appeal No. 1506-1517 of 2016 titled Pardeep Kumar etc. etc. v. NOIDA which pertains to subsequent acquisition proceeding in the same village Makanpur, but falling under NOIDA, had on 16th February, 2016 set aside the order passed by the High Court of Judicature at Allahabad and remanded the matter back to the High Court for reconsideration in view of the judgments passed by the coordinate benches of the same High Court in Kashi Rams case as well as other cases. The High Court, after the remand vide its judgment dated 11th April, 2016 in First Appeal No. 522 of 2009 titled, Pardeep Kumar and Others v. State of U.P. & Anr. awarded the same enhanced compensation at the rate of Rs. 297/- per sq. Yard even in the same case also. The High Court while awarding the compensation at the same rate held:"27. Therefore, one of the questions which needs to be examined by us is, can the appellants be denied the same rate of compensation only because the filed by them before the reference court did not disclose the rate which they seek now in terms of the judgment of the High Court in the case of Ghaziabad Development Authority (supra). Kanshi Ram case.xxx xxx xxx29. It is settled law that the compensation under the Act, 1894 had to be fair and just. Fairness requires that all those similarly situated are treated similarly. Technicalities qua rate as per exemplars filed by poor farmers, who are illiterate, has to be given only such importance as may not defeat their right of fair and just compensation qua compulsory acquisition of land holdings.30. The determination of acquisition at the rate of Rs. 297/- per square yard in the case of Ghaziabad Development Authority (supra) Kashi Ram case has therefore, to be taken as the fair rate determined for the land situated in the village Makanpur with regard to the notification issued on 12th September, 1986 as well as under Notification dated 15th March, 1988."15. The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs. 297/- per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice.16. Simply because the appellants had paid court fee on the claim at the rate of Rs. 115/- square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs. 297/- per square yards. | 1[ds]It transpires from the bare reading of the aforesaid provision that even in the absence of exemplars and other evidence, higher compensation can be allowed for others whose land was acquired under the same Notification.7. The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for `fair compensation. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them.8. No doubt the judicial system that prevails is based on adversarial form of adjudication. At the same time, recognising the demerits and limitations of adversarial litigation, elements of social context adjudication are brought into the decision making process, particularly, when it comes to administering justice to the marginalised section of the society.society.12. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs. 115/per sq. yard, as they were not in a position to pay the court fee on a higher amount.13. It is the aforesaid weighty consideration which justify award of compensation to the appellants at the rate of Rs. 297/per square yards. Though, the aforesaid reasons are enough to allow the appeals, in the present case, there is yet another additional circumstance which justifies this outcome.The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs. 297/per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice.16. Simply because the appellants had paid court fee on the claim at the rate of Rs. 115/square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs. 297/per square yards. | 1 | 3,792 | 856 | ### 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:
the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice. Purposive interpretation is given to subserve the ends of justice particularly when the cases of vulnerable groups are decided. The Court has to keep in mind the `problem solving approach by adopting therapeutic approaches to the maximum extent the law permits rather than `just deciding cases, thereby bridging the gap between law and life, between law and justice. The notion of access to justice is to be taken in a broader sense. The objective is to render justice to the needy and that means fair solutions to the conflict thereby providing real access to `justice.11. Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as `Reflective Equilibrium. The method of Reflective Equilibrium was first introduced by Nelson Goodman in `Fact, Fiction and Forecast (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the concept of `Justice as Fairness. While on the one hand, we have the doctrine of `justice as fairness, as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of `Distributive Justice propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawlss notion of `Justice as Fairness with the notions of `Distributive Justice, to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society.12. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs. 115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount.13. It is the aforesaid weighty consideration which justify award of compensation to the appellants at the rate of Rs. 297/- per square yards. Though, the aforesaid reasons are enough to allow the appeals, in the present case, there is yet another additional circumstance which justifies this outcome.14. This Court in Civil Appeal No. 1506-1517 of 2016 titled Pardeep Kumar etc. etc. v. NOIDA which pertains to subsequent acquisition proceeding in the same village Makanpur, but falling under NOIDA, had on 16th February, 2016 set aside the order passed by the High Court of Judicature at Allahabad and remanded the matter back to the High Court for reconsideration in view of the judgments passed by the coordinate benches of the same High Court in Kashi Rams case as well as other cases. The High Court, after the remand vide its judgment dated 11th April, 2016 in First Appeal No. 522 of 2009 titled, Pardeep Kumar and Others v. State of U.P. & Anr. awarded the same enhanced compensation at the rate of Rs. 297/- per sq. Yard even in the same case also. The High Court while awarding the compensation at the same rate held:"27. Therefore, one of the questions which needs to be examined by us is, can the appellants be denied the same rate of compensation only because the filed by them before the reference court did not disclose the rate which they seek now in terms of the judgment of the High Court in the case of Ghaziabad Development Authority (supra). Kanshi Ram case.xxx xxx xxx29. It is settled law that the compensation under the Act, 1894 had to be fair and just. Fairness requires that all those similarly situated are treated similarly. Technicalities qua rate as per exemplars filed by poor farmers, who are illiterate, has to be given only such importance as may not defeat their right of fair and just compensation qua compulsory acquisition of land holdings.30. The determination of acquisition at the rate of Rs. 297/- per square yard in the case of Ghaziabad Development Authority (supra) Kashi Ram case has therefore, to be taken as the fair rate determined for the land situated in the village Makanpur with regard to the notification issued on 12th September, 1986 as well as under Notification dated 15th March, 1988."15. The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs. 297/- per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice.16. Simply because the appellants had paid court fee on the claim at the rate of Rs. 115/- square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs. 297/- per square yards.
### Response:
1
### Explanation:
It transpires from the bare reading of the aforesaid provision that even in the absence of exemplars and other evidence, higher compensation can be allowed for others whose land was acquired under the same Notification.7. The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for `fair compensation. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them.8. No doubt the judicial system that prevails is based on adversarial form of adjudication. At the same time, recognising the demerits and limitations of adversarial litigation, elements of social context adjudication are brought into the decision making process, particularly, when it comes to administering justice to the marginalised section of the society.society.12. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs. 115/per sq. yard, as they were not in a position to pay the court fee on a higher amount.13. It is the aforesaid weighty consideration which justify award of compensation to the appellants at the rate of Rs. 297/per square yards. Though, the aforesaid reasons are enough to allow the appeals, in the present case, there is yet another additional circumstance which justifies this outcome.The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs. 297/per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice.16. Simply because the appellants had paid court fee on the claim at the rate of Rs. 115/square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs. 297/per square yards.
|
The Management Of Marina Hotel Vs. The Woremen | that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.7. Leave. The contortion of the appellant in this connection is that the Tribunal was not justified in awarding 15 days casual-cum-sickness leave in view of the provisions of S. 22 of the Delhi shops and Establishments Act, (No. VII of 1954), as that provides for a maximum of 12 days for sickness-cum-casual leave. This matter was considered by this Court in Messrs. Dalmia Cement (Bharat) Ltd. New Delhi v. Their Workers, AIR 1960 SC 413 and it was pointed out that the position with regard to sickness-cum-casual leave was that S. 22 fixed a maximum of12 days total leave for sickness or casual leave with full wages, and it was not open to the tribunal to disregard this peremptory direction of the Legislature. In this case the Tribunal was aware of the provisions of S. 22 of the Delhi shops and Establishments Act; but in spite of that it decided to grant 15 days sickness-cum-casual leave instead of 12 days which was the maximum provided under the Act. This in our opinion was illegal and the amount of casual-cum-sickness leave must be reduced to12 days as provided in the Act.8. It was urged on behalf of the respondents that the kitchen of the hotel would be a factory and the Delhi shops and Establishments Act would not apply to the kitchen staff at any rate. This point however was not raised in the written-statement where the respondents case was that the Act did not debar the workmen from demanding mare leave than what was provided therein. It is not in dispute that the Delhi Shops and Establishments Act applies to this hotel. Whether the kitchen of the hotel would be a factory and thus the staff working in the kitchen would be exempt from the operation of the Delhi Shops and Establishments Act is a question which cannot be decided in the present appeal in the absence of facts. In the circumstances the order of the Tribunal with respect to casual-cum-sickness leave is modified as indicated above.9. Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Funds Act.10. Scales of Pay. The workmen had demanded certain scales of pay; but the Tribunal has fixed scales which are somewhat lower than those demanded by the workmen. The Tribunal was of opinion that the scales fixed by it were in accordance with the scales prevailing in some hotels in the Delhi area; in particular it referred to the scales in the Cecil and Grand hotels, which are more or less similar. The appellant however relies on the statement of Lakshmi Chand Narula, Hony. Secretary of the Delhi Caterers Association, who stated that the Marina Hotel was in B category. Our attention was also drawn to the statement of D. D. Singh, Secretary, Hotel Workers Union on behalf of the respondents who stated that the workers placed the Marina Hotel in category A, which included almost all the hotels in New Delhi and Civil Lines Delhi. The Grand and Cecil hotels are in Civil Lines Delhi and Singhs contention was that they were comparable, though he did not say so in so many words. The appellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by the Tribunal.11. Dearness Allowances. The dearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950. | 0[ds]3. The appellant, as we have already mentioned, relies on the observations of this Court in the case of Voltas Ltd, 1961-l Lab LJ 323 : (AIR 1961 SC 941 ). However, we are of opinion that those observations can not help the appellant. It cannot be disputed that even taking into account the amount received by the workmen through distribution of service charges and tips, there is still a gap between their existing income and the living wage.Coming now to the available surplus for the year 1953-54, the Tribunal found that the net profits were Rs. 98343 and was of opinion that taking into account the prior charges three months bonus would be justified as the monthly wage-bill was about Rs. 5500 per month. The Tribunal, however, did not make a chart in accordance with the Full Bench formula to work out the available surplus. It said that even making allowance for the prior charges there was a substantial surplus to allow payment of three months bonus. The main attack of the appellant is directed to this infirmity in the Tribunals judgment. It appears however that the appellant also did not submit a chart showing the available surplus, according to its calculations as is usually done in such cases by an employer. The reason for this apparently was that the balance sheet and the profit and loss account of the appellant are maintained in a rather peculiar way from which it was not easy to work out the figures according to the Full Bench formula. There is no doubt however that the net profits were above Rs. 98,000 in 1953-54. Depreciation was already provided for in the profit and loss account and as the Tribunal had taken into account net profits it was not necessary to allow any further depreciation, for the net profits had been arrived at after charging depreciation. As for rehabilitation it seems to us that there is hardly any scope for rehabilitation in the present case, for we find from the profit and loss account that repairs and replacements which would include what is understood as rehabilitation are charged as expenses. As for income-tax, it appears that the rate was 45 per centum in the relevant year. The income-tax would thus work out to about As. 44,000 leaving a balance of about As. 54,000. Then comes 6 per centum return on paid-up capital. The balance-sheet shows As. 6,000 as paid-up capital on which the appellant would be entitled to Rs. 360. But, it has been urged before us that the business was purchased for As. 60,000 and that should so be treated as capital. It is enough to say that even it this is a fact there was no evidence of it before the Tribunal and the balance-sheet did not show this figure as capital. In the circumstances the appellant cannot in the absence of proof claim that the capital on which 6 per centum interest should be allowed is Rs. 60,000. It will however be open to the appellant to prove this in subsequent years if it can. The last of the prior charges is return on working capital. On that also there was no evidence worth the name as to what amount was used as working capital. In the circumstances the award of three months bonus cannot possibly be challenged beforefurther find that in the profit and loss account for the year 1953-54 there is an item of over Rs, 13,000 for refund of water charges which has been claimed as extraneous income unrelated to the efforts of labour. If this amount is deducted from the profit of 1953-54 the profit in that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Fundsappellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by thedearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950. | 0 | 2,873 | 1,179 | ### 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:
that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.7. Leave. The contortion of the appellant in this connection is that the Tribunal was not justified in awarding 15 days casual-cum-sickness leave in view of the provisions of S. 22 of the Delhi shops and Establishments Act, (No. VII of 1954), as that provides for a maximum of 12 days for sickness-cum-casual leave. This matter was considered by this Court in Messrs. Dalmia Cement (Bharat) Ltd. New Delhi v. Their Workers, AIR 1960 SC 413 and it was pointed out that the position with regard to sickness-cum-casual leave was that S. 22 fixed a maximum of12 days total leave for sickness or casual leave with full wages, and it was not open to the tribunal to disregard this peremptory direction of the Legislature. In this case the Tribunal was aware of the provisions of S. 22 of the Delhi shops and Establishments Act; but in spite of that it decided to grant 15 days sickness-cum-casual leave instead of 12 days which was the maximum provided under the Act. This in our opinion was illegal and the amount of casual-cum-sickness leave must be reduced to12 days as provided in the Act.8. It was urged on behalf of the respondents that the kitchen of the hotel would be a factory and the Delhi shops and Establishments Act would not apply to the kitchen staff at any rate. This point however was not raised in the written-statement where the respondents case was that the Act did not debar the workmen from demanding mare leave than what was provided therein. It is not in dispute that the Delhi Shops and Establishments Act applies to this hotel. Whether the kitchen of the hotel would be a factory and thus the staff working in the kitchen would be exempt from the operation of the Delhi Shops and Establishments Act is a question which cannot be decided in the present appeal in the absence of facts. In the circumstances the order of the Tribunal with respect to casual-cum-sickness leave is modified as indicated above.9. Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Funds Act.10. Scales of Pay. The workmen had demanded certain scales of pay; but the Tribunal has fixed scales which are somewhat lower than those demanded by the workmen. The Tribunal was of opinion that the scales fixed by it were in accordance with the scales prevailing in some hotels in the Delhi area; in particular it referred to the scales in the Cecil and Grand hotels, which are more or less similar. The appellant however relies on the statement of Lakshmi Chand Narula, Hony. Secretary of the Delhi Caterers Association, who stated that the Marina Hotel was in B category. Our attention was also drawn to the statement of D. D. Singh, Secretary, Hotel Workers Union on behalf of the respondents who stated that the workers placed the Marina Hotel in category A, which included almost all the hotels in New Delhi and Civil Lines Delhi. The Grand and Cecil hotels are in Civil Lines Delhi and Singhs contention was that they were comparable, though he did not say so in so many words. The appellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by the Tribunal.11. Dearness Allowances. The dearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950.
### Response:
0
### Explanation:
found that the net profits were Rs. 98343 and was of opinion that taking into account the prior charges three months bonus would be justified as the monthly wage-bill was about Rs. 5500 per month. The Tribunal, however, did not make a chart in accordance with the Full Bench formula to work out the available surplus. It said that even making allowance for the prior charges there was a substantial surplus to allow payment of three months bonus. The main attack of the appellant is directed to this infirmity in the Tribunals judgment. It appears however that the appellant also did not submit a chart showing the available surplus, according to its calculations as is usually done in such cases by an employer. The reason for this apparently was that the balance sheet and the profit and loss account of the appellant are maintained in a rather peculiar way from which it was not easy to work out the figures according to the Full Bench formula. There is no doubt however that the net profits were above Rs. 98,000 in 1953-54. Depreciation was already provided for in the profit and loss account and as the Tribunal had taken into account net profits it was not necessary to allow any further depreciation, for the net profits had been arrived at after charging depreciation. As for rehabilitation it seems to us that there is hardly any scope for rehabilitation in the present case, for we find from the profit and loss account that repairs and replacements which would include what is understood as rehabilitation are charged as expenses. As for income-tax, it appears that the rate was 45 per centum in the relevant year. The income-tax would thus work out to about As. 44,000 leaving a balance of about As. 54,000. Then comes 6 per centum return on paid-up capital. The balance-sheet shows As. 6,000 as paid-up capital on which the appellant would be entitled to Rs. 360. But, it has been urged before us that the business was purchased for As. 60,000 and that should so be treated as capital. It is enough to say that even it this is a fact there was no evidence of it before the Tribunal and the balance-sheet did not show this figure as capital. In the circumstances the appellant cannot in the absence of proof claim that the capital on which 6 per centum interest should be allowed is Rs. 60,000. It will however be open to the appellant to prove this in subsequent years if it can. The last of the prior charges is return on working capital. On that also there was no evidence worth the name as to what amount was used as working capital. In the circumstances the award of three months bonus cannot possibly be challenged beforefurther find that in the profit and loss account for the year 1953-54 there is an item of over Rs, 13,000 for refund of water charges which has been claimed as extraneous income unrelated to the efforts of labour. If this amount is deducted from the profit of 1953-54 the profit in that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Fundsappellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by thedearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950.
|
Management of D.C. Dewan Mohideen Sahib & Sons & Another Vs. Secretary, United Beedi Workers' Union Salem & Another | under the so-called independent contractors in these cases are workmen of the appellants. It has been found by the tribunal and this view has been confirmed by the appeal Court that the so-called independent contractors were mere agents or branch managers of the appellants. We see no reason to disagree with this view taken by the tribunal and confirmed by the appeal Court on the facts of these cases. We are not unmindful in this connection of the view taken by the learned Single Judge when he held that on the agreements and the facts found the so-called intermediaries were independent contractors. We are, however, of opinion that the view taken by the appeal Court in this connection is the right one. As the appeal Court has rightly pointed out the so-called independent contractors were indigent persons who were in all respects under the control of the appellants. There is in our opinion little doubt that this system has been involved to avoid regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement as available on the record that the so-called independent contractors have really been independent at all. As the appeal Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are even ex-employees of the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, the so-called contractors having no right to insist upon the supply or raw materials to him. The so-called independent contractor is even bound not to employ more than nine persons in his so-called factory. The sale of raw materials to the so-called independent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that the so-called contractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for the so-called sale of raw materials is deducted from the so-called price fixed for the bidis. In effect all that happened is that the so-called independent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that the so-called contractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number of so-called independent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by the so-called contractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independent contractors.13. It is, however, urged that there is no control by even the agent over the bidi workers. Now the evidence shows that the bidi workers are permitted to take the leaves him in order to cut them so that they might be in proper shape and size for next days work; but the real work of filling the leave with tobacco (i.e. rolling the bidis) can only be done in the so-called factory of the so-called independent contractor. No tobacco is ever given to the workers to be taken home to be rolled into bidis as and when they liked. They have to attend the so-called factory of the so-called independent contractor to do the real work of rolling bidis. As was pointed out by this Court in Birdhichand Sharmas case, 1961-3 SCR 161 : (AIR 1961 SC 644 ), the work is of such a simple nature that supervision all the time is not required. In Birdhichand Sharmas case, 1961-3 SCR 161 : (AIR 1961 SC 644 ), supervision was made through a system of rejecting the defective bidis, at the end of day. In the present cases we have not got the full terms of the agreement and it is, therefore, not possible to say that there was no kind of supervision or control over the workers and that the so-called independent contractors had to accept all kinds of bidis whether made upto standard or not. It is hardly likely that the so-called independent contractor will accept bidis which are not upto the standard; for that is usually the system which prevails in this trade as will be apparent from the facts of the many bidi manufacturing cases to which we have referred. We are, therefore, not prepared to hold in the absence of any evidence one way or the other that there is no supervision whatsoever of the work done by the workers. In the circumstances we are of opinion that the relationship of master and servant between the appellants and the workmen employed by the so-called independent contractors is established. As the appeal Court has pointed out whatever there was a dispute in connection with the manufacture of bidis the workers looked to the appellants for redress. In one of the cases the manager of one of the appellants sent a letter to the labour officer that the factory was agreeable to increase the wages of the workers from Rs. 1-14-0 to Rs. 2 per thousand bidis. In the other case also a similar letter was addressed showing that whenever there was increase or decrease in wages of the workers who work under the so-called independent contractors the real decision was taken by the appellants. This conduct on the part of the appellants is clearly inconsistent with their plea that the workers are not their employees and there is no privity between them and the said workers. | 1[ds]12. It is in the light of these decisions that we have to decide whether the workmen who work under the so-called independent contractors in these cases are workmen of the appellants. It has been found by the tribunal and this view has been confirmed by the appeal Court that the so-called independent contractors were mere agents or branch managers of the appellants. We see no reason to disagree with this view taken by the tribunal and confirmed by the appeal Court on the facts of these cases. We are not unmindful in this connection of the view taken by the learned Single Judge when he held that on the agreements and the facts found the so-called intermediaries were independent contractors. We are, however, of opinion that the view taken by the appeal Court in this connection is the right one. As the appeal Court has rightly pointed out the so-called independent contractors were indigent persons who were in all respects under the control of the appellants. There is in our opinion little doubt that this system has been involved to avoid regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement as available on the record that the so-called independent contractors have really been independent at all. As the appeal Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are even ex-employees of the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, the so-called contractors having no right to insist upon the supply or raw materials to him. The so-called independent contractor is even bound not to employ more than nine persons in his so-called factory. The sale of raw materials to the so-called independent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that the so-called contractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for the so-called sale of raw materials is deducted from the so-called price fixed for the bidis. In effect all that happened is that the so-called independent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that the so-called contractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number of so-called independent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by the so-called contractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independentthe present cases we have not got the full terms of the agreement and it is, therefore, not possible to say that there was no kind of supervision or control over the workers and that the so-called independent contractors had to accept all kinds of bidis whether made upto standard or not. It is hardly likely that the so-called independent contractor will accept bidis which are not upto the standard; for that is usually the system which prevails in this trade as will be apparent from the facts of the many bidi manufacturing cases to which we have referred. We are, therefore, not prepared to hold in the absence of any evidence one way or the other that there is no supervision whatsoever of the work done by the workers. In the circumstances we are of opinion that the relationship of master and servant between the appellants and the workmen employed by the so-called independent contractors is established. As the appeal Court has pointed out whatever there was a dispute in connection with the manufacture of bidis the workers looked to the appellants for redress. In one of the cases the manager of one of the appellants sent a letter to the labour officer that the factory was agreeable to increase the wages of the workers from Rs. 1-14-0 to Rs. 2 per thousand bidis. In the other case also a similar letter was addressed showing that whenever there was increase or decrease in wages of the workers who work under the so-called independent contractors the real decision was taken by the appellants. This conduct on the part of the appellants is clearly inconsistent with their plea that the workers are not their employees and there is no privity between them and the said workers.are, however, of opinion that the view taken by the appeal Court in this connection is the right one. As the appeal Court has rightly pointed out theindependent contractors were indigent persons who were in all respects under the control of the appellants. There is in our opinion little doubt that this system has been involved to avoid regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement as available on the record that theindependent contractors have really been independent at all. As the appeal Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are evenof the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, thecontractors having no right to insist upon the supply or raw materials to him. Theindependent contractor is even bound not to employ more than nine persons in hisfactory. The sale of raw materials to theindependent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that thecontractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for thesale of raw materials is deducted from theprice fixed for the bidis. In effect all that happened is that theindependent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that thecontractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number ofindependent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by thecontractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independent | 1 | 4,011 | 1,286 | ### Instruction:
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under the so-called independent contractors in these cases are workmen of the appellants. It has been found by the tribunal and this view has been confirmed by the appeal Court that the so-called independent contractors were mere agents or branch managers of the appellants. We see no reason to disagree with this view taken by the tribunal and confirmed by the appeal Court on the facts of these cases. We are not unmindful in this connection of the view taken by the learned Single Judge when he held that on the agreements and the facts found the so-called intermediaries were independent contractors. We are, however, of opinion that the view taken by the appeal Court in this connection is the right one. As the appeal Court has rightly pointed out the so-called independent contractors were indigent persons who were in all respects under the control of the appellants. There is in our opinion little doubt that this system has been involved to avoid regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement as available on the record that the so-called independent contractors have really been independent at all. As the appeal Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are even ex-employees of the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, the so-called contractors having no right to insist upon the supply or raw materials to him. The so-called independent contractor is even bound not to employ more than nine persons in his so-called factory. The sale of raw materials to the so-called independent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that the so-called contractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for the so-called sale of raw materials is deducted from the so-called price fixed for the bidis. In effect all that happened is that the so-called independent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that the so-called contractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number of so-called independent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by the so-called contractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independent contractors.13. It is, however, urged that there is no control by even the agent over the bidi workers. Now the evidence shows that the bidi workers are permitted to take the leaves him in order to cut them so that they might be in proper shape and size for next days work; but the real work of filling the leave with tobacco (i.e. rolling the bidis) can only be done in the so-called factory of the so-called independent contractor. No tobacco is ever given to the workers to be taken home to be rolled into bidis as and when they liked. They have to attend the so-called factory of the so-called independent contractor to do the real work of rolling bidis. As was pointed out by this Court in Birdhichand Sharmas case, 1961-3 SCR 161 : (AIR 1961 SC 644 ), the work is of such a simple nature that supervision all the time is not required. In Birdhichand Sharmas case, 1961-3 SCR 161 : (AIR 1961 SC 644 ), supervision was made through a system of rejecting the defective bidis, at the end of day. In the present cases we have not got the full terms of the agreement and it is, therefore, not possible to say that there was no kind of supervision or control over the workers and that the so-called independent contractors had to accept all kinds of bidis whether made upto standard or not. It is hardly likely that the so-called independent contractor will accept bidis which are not upto the standard; for that is usually the system which prevails in this trade as will be apparent from the facts of the many bidi manufacturing cases to which we have referred. We are, therefore, not prepared to hold in the absence of any evidence one way or the other that there is no supervision whatsoever of the work done by the workers. In the circumstances we are of opinion that the relationship of master and servant between the appellants and the workmen employed by the so-called independent contractors is established. As the appeal Court has pointed out whatever there was a dispute in connection with the manufacture of bidis the workers looked to the appellants for redress. In one of the cases the manager of one of the appellants sent a letter to the labour officer that the factory was agreeable to increase the wages of the workers from Rs. 1-14-0 to Rs. 2 per thousand bidis. In the other case also a similar letter was addressed showing that whenever there was increase or decrease in wages of the workers who work under the so-called independent contractors the real decision was taken by the appellants. This conduct on the part of the appellants is clearly inconsistent with their plea that the workers are not their employees and there is no privity between them and the said workers.
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Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are even ex-employees of the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, the so-called contractors having no right to insist upon the supply or raw materials to him. The so-called independent contractor is even bound not to employ more than nine persons in his so-called factory. The sale of raw materials to the so-called independent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that the so-called contractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for the so-called sale of raw materials is deducted from the so-called price fixed for the bidis. In effect all that happened is that the so-called independent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that the so-called contractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number of so-called independent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by the so-called contractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independentthe present cases we have not got the full terms of the agreement and it is, therefore, not possible to say that there was no kind of supervision or control over the workers and that the so-called independent contractors had to accept all kinds of bidis whether made upto standard or not. It is hardly likely that the so-called independent contractor will accept bidis which are not upto the standard; for that is usually the system which prevails in this trade as will be apparent from the facts of the many bidi manufacturing cases to which we have referred. We are, therefore, not prepared to hold in the absence of any evidence one way or the other that there is no supervision whatsoever of the work done by the workers. In the circumstances we are of opinion that the relationship of master and servant between the appellants and the workmen employed by the so-called independent contractors is established. As the appeal Court has pointed out whatever there was a dispute in connection with the manufacture of bidis the workers looked to the appellants for redress. In one of the cases the manager of one of the appellants sent a letter to the labour officer that the factory was agreeable to increase the wages of the workers from Rs. 1-14-0 to Rs. 2 per thousand bidis. In the other case also a similar letter was addressed showing that whenever there was increase or decrease in wages of the workers who work under the so-called independent contractors the real decision was taken by the appellants. This conduct on the part of the appellants is clearly inconsistent with their plea that the workers are not their employees and there is no privity between them and the said workers.are, however, of opinion that the view taken by the appeal Court in this connection is the right one. As the appeal Court has rightly pointed out theindependent contractors were indigent persons who were in all respects under the control of the appellants. There is in our opinion little doubt that this system has been involved to avoid regulations under the Factories Act. Further there is also no doubt from whatever terms of agreement as available on the record that theindependent contractors have really been independent at all. As the appeal Court has pointed out they are impecunious persons who could hardly afford to have factories of their own. Some of them are evenof the appellants. The contract is practically one sided in that the proprietor can at his choice supply the raw materials or refuse to do so, thecontractors having no right to insist upon the supply or raw materials to him. Theindependent contractor is even bound not to employ more than nine persons in hisfactory. The sale of raw materials to theindependent contractor and resale by him of the manufactured bidis is also a mere camouflage, the nature of which is apparent from the fact that thecontractor never paid for the materials. All that happens is that when the manufactured bidis are delivered by him to the appellants, amounts due for thesale of raw materials is deducted from theprice fixed for the bidis. In effect all that happened is that theindependent contractor is supplied with tobacco and leaves and is paid certain amounts for the wages of the workers employed and for his own trouble. We can, therefore, see no difficulty in holding that thecontractor is merely an employee of an agent of the appellants as held by the appeal Court and as such employee or agent he employs workers to roll bidis on behalf of the appellants. The work is distributed between a number ofindependent contractors who are told not to employ more than nine persons at one place to avoid regulations under the Factories Act. We are not, however, concerned with that aspect of the matter in the present appeals. But there can be no doubt that the workers employed by thecontractors are really the workmen of the appellants who are employed through their agents or servants whom they choose to call independent
|
Ram Ran Bijai Singh And Others Vs. Behari Singh Alias Bagandha Singh | even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors. In this context, the plea made by the plaintiffs relevant to the character of the possession of the contesting defendants assumes crucial importance, for if they were admitted trespassers then they could not be said to hold the property on behalf of the mortgagors and the entire basis of the argument as to the property being in the khas possession of the plaintiffs would disappear. Paragraph 10 of the plaint reads :"..... It is quite clear that the defendants 1st party or 2nd party have no kasht right in the disputed lands as against the plaintiffs, and after redemption of the rehan, their possession and occupation are quite wrongful".20. They expanded the idea here contained in the next paragraph which we shall set out in full:"On 8-6-41, in the year 1941 - the plaintiffs, on payment of the entire rehan money, and redeemed the rehan property under the rehan bond dated 10-6-1907 and entered into possession and occupation of the rehan property covered by the said bond, but when the plaintiffs wanted to enter into possession and occupation of the disputed land entered in schedule No. 3, the defendants 2nd party in collusion and concert with the defendants 1st party did not allow the plaintiffs to enter into possession and occupation and there was fresh invasion against the title of the plaintiffs."21. It is hardly necessary to add that the defendants lst and 2nd parties besides asserting their right to be in possession lawfully as tenants cultivating raiyati land, also asserted that they had acquired that right on account of adverse possession for more than 12 years and "on account of being settled raiyats which the maliks had all along been admitting etc. ........." The relevant issue framed in regard to this point was Issue No. 9 which read :"Have defendant 2nd party or lst party acquired any right in the suit land by adverse possession?"and it was for the consideration of this issue that it was necessary for the Court to ascertain the date when their possession became adverse. The finding recorded by the learned trial Judge was in these terms :"......The rehandars (lst and 2nd) ......... had no right to create tenancies in the zerait land in suit and whatever tenancies might have been created by them during their possession, ipso facto came to an end when the mortgage was redeemed by the plaintiffs in 1941. The possession of defendants 1st party or defendants 2nd party became that of a trespasser as against the plaintiffs on the redemption of the rehan in 1941; and the suit having been instituted within 12 years from the date of redemption, the suit is not barred by limitation and the plaintiffs are entitled to recover khas possession ......... The plaintiffs are entitled to treat both of them as trespassers and their possession would become adverse as against the plaintiffs from the date of redemption i.e., from 1941. The suit having been instituted within 12 years from 1941, the plaintiffs right to recover khas possession of the suit land will therefore not be barred by limitation",and the same idea is repeated in a later passage of the judgment. This aspect of the case has not been dealt with in the judgment of the High Court apparently because the title of the contesting defendants based on adverse possession for over 12 years was not pressed before the High Court in view of its finding on the other parts of the case.21. The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.22. | 0[ds]The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors.The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted. | 0 | 5,476 | 475 | ### Instruction:
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even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors. In this context, the plea made by the plaintiffs relevant to the character of the possession of the contesting defendants assumes crucial importance, for if they were admitted trespassers then they could not be said to hold the property on behalf of the mortgagors and the entire basis of the argument as to the property being in the khas possession of the plaintiffs would disappear. Paragraph 10 of the plaint reads :"..... It is quite clear that the defendants 1st party or 2nd party have no kasht right in the disputed lands as against the plaintiffs, and after redemption of the rehan, their possession and occupation are quite wrongful".20. They expanded the idea here contained in the next paragraph which we shall set out in full:"On 8-6-41, in the year 1941 - the plaintiffs, on payment of the entire rehan money, and redeemed the rehan property under the rehan bond dated 10-6-1907 and entered into possession and occupation of the rehan property covered by the said bond, but when the plaintiffs wanted to enter into possession and occupation of the disputed land entered in schedule No. 3, the defendants 2nd party in collusion and concert with the defendants 1st party did not allow the plaintiffs to enter into possession and occupation and there was fresh invasion against the title of the plaintiffs."21. It is hardly necessary to add that the defendants lst and 2nd parties besides asserting their right to be in possession lawfully as tenants cultivating raiyati land, also asserted that they had acquired that right on account of adverse possession for more than 12 years and "on account of being settled raiyats which the maliks had all along been admitting etc. ........." The relevant issue framed in regard to this point was Issue No. 9 which read :"Have defendant 2nd party or lst party acquired any right in the suit land by adverse possession?"and it was for the consideration of this issue that it was necessary for the Court to ascertain the date when their possession became adverse. The finding recorded by the learned trial Judge was in these terms :"......The rehandars (lst and 2nd) ......... had no right to create tenancies in the zerait land in suit and whatever tenancies might have been created by them during their possession, ipso facto came to an end when the mortgage was redeemed by the plaintiffs in 1941. The possession of defendants 1st party or defendants 2nd party became that of a trespasser as against the plaintiffs on the redemption of the rehan in 1941; and the suit having been instituted within 12 years from the date of redemption, the suit is not barred by limitation and the plaintiffs are entitled to recover khas possession ......... The plaintiffs are entitled to treat both of them as trespassers and their possession would become adverse as against the plaintiffs from the date of redemption i.e., from 1941. The suit having been instituted within 12 years from 1941, the plaintiffs right to recover khas possession of the suit land will therefore not be barred by limitation",and the same idea is repeated in a later passage of the judgment. This aspect of the case has not been dealt with in the judgment of the High Court apparently because the title of the contesting defendants based on adverse possession for over 12 years was not pressed before the High Court in view of its finding on the other parts of the case.21. The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.22.
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The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors.The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.
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ASHOK KUMAR AND ORS. ETC. ETC Vs. THE STATE OF JAMMU AND KASHMIR & ORS | also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, is completely untenable. 26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court. Rule 18 of the CCA Rules relied upon by the learned Counsel for the contesting respondents reads as follows: 18. Special Qualification No person shall be eligible for appointment to any service, class, category or grade or any post on the cadre thereof unless he- (a) Possesses such qualification and has passed such special tests as may be prescribed in that behalf by the Government, or (b) Possesses such other qualification as may be considered by the Government to be equivalent to the said special qualifications or special tests. 27. But the above Rule has no application to the staff of the High Court, as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court. 28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand. This Rule 5 reads as follows: 5. Relaxation of rules Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him. 29. In so far as the staff of the High Court are concerned, Rule 5 has no application. When the Rule making power is vested with the High Court (subject to the approval of the Governor) and when the Chief Justice is specifically empowered to prescribe the qualifications and method of recruitment, the CCA Rules which are general in nature cannot be replicated. 30. The High Court was wrong in thinking that Note-2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him. If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut off date. 31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is completely incorrect. The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice. 32. The High Court erred in thinking that the impugned action of the Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class. 33. Way Back in 1968, the Constitution Bench of this Court held in the State of Mysore & Anr. vs. P. Narasinga Rao AIR 1968 SC 349 , that Article 16(1) does not bar a reasonable classification of employees or reasonable test for their selection. It was further held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Despite the fact that the competing parties who were before this Court in the said case were employed as Tracers, carrying out the same duties and responsibilities, the Bench held in that case that the classification of Tracers, into two types with different grades of pay, on the basis that one type consisted of matriculates and the other non- matriculates, is not violative of Articles 14 and 16. Again in State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors. (1974) 1 SCC 19 , another Constitution Bench considered the question whether persons drawn from different sources and integrated into one class can be classified on the basis of their educational qualifications for promotion. The Constitution Bench answered the question in the affirmative holding that the Rule providing for graduates to be eligible for promotion to the exclusion of diploma holders is not violative of Articles 14 and 16 of the Constitution. 34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. 35. As pointed out in T.R.Kothandaraman (supra), the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16. | 1[ds]22. Before we proceed to analyse the rival contentions, it must be kept in mind that the contesting respondents-herein have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available. Their appointments were set aside in Writ Petition No.1751 of 2008. The appeals filed against the said Order in LPA Nos.45 and 84 of 2010 were also dismissed.23. It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.24. As a matter of fact, the Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench.25. If we come to the grounds of attack to the impugned order of the Chief Justice, it is clear that the power of the Chief Justice clearly flowed out of Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968. These Rules were issued by the High Court in exercise of the power conferred by Section 108(2) of the Constitution of Jammu & Kashmir. These Rules had the approval of the Governor also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, is completely untenable.26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court.27. But the above Rule has no application to the staff of the High Court, as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court.28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand.29. In so far as the staff of the High Court are concerned, Rule 5 has no application. When the Rule making power is vested with the High Court (subject to the approval of the Governor) and when the Chief Justice is specifically empowered to prescribe the qualifications and method of recruitment, the CCA Rules which are general in nature cannot be replicated.30. The High Court was wrong in thinking that Note-2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him. If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut off date.31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is completely incorrect. The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice.32. The High Court erred in thinking that the impugned action of the Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class.34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion.35. As pointed out in T.R.Kothandaraman (supra), the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16. | 1 | 3,448 | 1,029 | ### 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:
also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, is completely untenable. 26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court. Rule 18 of the CCA Rules relied upon by the learned Counsel for the contesting respondents reads as follows: 18. Special Qualification No person shall be eligible for appointment to any service, class, category or grade or any post on the cadre thereof unless he- (a) Possesses such qualification and has passed such special tests as may be prescribed in that behalf by the Government, or (b) Possesses such other qualification as may be considered by the Government to be equivalent to the said special qualifications or special tests. 27. But the above Rule has no application to the staff of the High Court, as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court. 28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand. This Rule 5 reads as follows: 5. Relaxation of rules Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him. 29. In so far as the staff of the High Court are concerned, Rule 5 has no application. When the Rule making power is vested with the High Court (subject to the approval of the Governor) and when the Chief Justice is specifically empowered to prescribe the qualifications and method of recruitment, the CCA Rules which are general in nature cannot be replicated. 30. The High Court was wrong in thinking that Note-2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him. If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut off date. 31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is completely incorrect. The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice. 32. The High Court erred in thinking that the impugned action of the Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class. 33. Way Back in 1968, the Constitution Bench of this Court held in the State of Mysore & Anr. vs. P. Narasinga Rao AIR 1968 SC 349 , that Article 16(1) does not bar a reasonable classification of employees or reasonable test for their selection. It was further held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Despite the fact that the competing parties who were before this Court in the said case were employed as Tracers, carrying out the same duties and responsibilities, the Bench held in that case that the classification of Tracers, into two types with different grades of pay, on the basis that one type consisted of matriculates and the other non- matriculates, is not violative of Articles 14 and 16. Again in State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors. (1974) 1 SCC 19 , another Constitution Bench considered the question whether persons drawn from different sources and integrated into one class can be classified on the basis of their educational qualifications for promotion. The Constitution Bench answered the question in the affirmative holding that the Rule providing for graduates to be eligible for promotion to the exclusion of diploma holders is not violative of Articles 14 and 16 of the Constitution. 34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. 35. As pointed out in T.R.Kothandaraman (supra), the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.
### Response:
1
### Explanation:
22. Before we proceed to analyse the rival contentions, it must be kept in mind that the contesting respondents-herein have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available. Their appointments were set aside in Writ Petition No.1751 of 2008. The appeals filed against the said Order in LPA Nos.45 and 84 of 2010 were also dismissed.23. It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.24. As a matter of fact, the Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench.25. If we come to the grounds of attack to the impugned order of the Chief Justice, it is clear that the power of the Chief Justice clearly flowed out of Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968. These Rules were issued by the High Court in exercise of the power conferred by Section 108(2) of the Constitution of Jammu & Kashmir. These Rules had the approval of the Governor also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, is completely untenable.26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court.27. But the above Rule has no application to the staff of the High Court, as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court.28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand.29. In so far as the staff of the High Court are concerned, Rule 5 has no application. When the Rule making power is vested with the High Court (subject to the approval of the Governor) and when the Chief Justice is specifically empowered to prescribe the qualifications and method of recruitment, the CCA Rules which are general in nature cannot be replicated.30. The High Court was wrong in thinking that Note-2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him. If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut off date.31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is completely incorrect. The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice.32. The High Court erred in thinking that the impugned action of the Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class.34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion.35. As pointed out in T.R.Kothandaraman (supra), the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.
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Kirti & Anr. Etc Vs. Oriental Insurance Company Ltd | Vinod and Poonam, and the usage of unskilled minimum wage for Vinod have been brought to our notice. 9. Learned Counsel for the respondent-insurer, on the other hand, has sought to forestall any increase in compensation, including under the ground of future prospects. It is claimed that the High Courts decision was a consent order, and that the counsel for the appellants had conceded to a lower computation under the head of loss of dependency, which thus cannot be challenged before this Court. ANALYSIS I. Deduction for Personal Expenses 10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .) 11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased. II. Assessment of monthly income 12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case. III. Addition of Future Prospects 13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.): 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. [Emphasis supplied] 14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case: 7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made.. [Emphasis supplied] IV. Other heads and division of compensation 15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls. For ready reference, a comparative table of revised compensation after suitable increases would thus be as follows: Table CONCLUSION | 1[ds]I. Deduction for Personal Expenses10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .)11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased.II. Assessment of monthly income12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case.III. Addition of Future Prospects13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.):59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case:7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made..IV. Other heads and division of compensation15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls. | 1 | 2,003 | 1,012 | ### 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:
Vinod and Poonam, and the usage of unskilled minimum wage for Vinod have been brought to our notice. 9. Learned Counsel for the respondent-insurer, on the other hand, has sought to forestall any increase in compensation, including under the ground of future prospects. It is claimed that the High Courts decision was a consent order, and that the counsel for the appellants had conceded to a lower computation under the head of loss of dependency, which thus cannot be challenged before this Court. ANALYSIS I. Deduction for Personal Expenses 10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .) 11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased. II. Assessment of monthly income 12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case. III. Addition of Future Prospects 13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.): 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. [Emphasis supplied] 14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case: 7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made.. [Emphasis supplied] IV. Other heads and division of compensation 15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls. For ready reference, a comparative table of revised compensation after suitable increases would thus be as follows: Table CONCLUSION
### Response:
1
### Explanation:
I. Deduction for Personal Expenses10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .)11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased.II. Assessment of monthly income12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case.III. Addition of Future Prospects13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.):59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case:7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made..IV. Other heads and division of compensation15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls.
|
The State Of Madras Vs. Srimathi Champakam | although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Ct. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of Art. 46 override the provisions of Art. 29 (2). We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Art. in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the Constitution. 9. In the next place it will be noticed that Art. 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that 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 also includes a specific clauses in the following terms:"(4) Nothing in this article shall prevent the State from making any 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 under the State." If the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of Art, 16. 10. Take the case of the petnr. Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non. Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petnr. Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. 11. It is argued that the petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petnrs. are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communil G. O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 14 or 15 on the specific Articles discussed above. | 0[ds]It will be noticed that while Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right8. The learned AdvocateGeneral appearing for the State contends that the provisions of this Article have to be read along with other Articles in the Constitution. He urges that Art. 46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Ct. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learnedl of Madras even contends that the provisions of Art. 46 override the provisions of Art. 29(2).We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Art. in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the ConstitutionIf the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of Art, 1611. It is argued that the petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates.This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petnrs. are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communil G. O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 14 or 15 on the specific Articles discussed above. | 0 | 2,668 | 1,090 | ### 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:
although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Ct. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of Art. 46 override the provisions of Art. 29 (2). We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Art. in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the Constitution. 9. In the next place it will be noticed that Art. 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that 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 also includes a specific clauses in the following terms:"(4) Nothing in this article shall prevent the State from making any 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 under the State." If the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of Art, 16. 10. Take the case of the petnr. Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non. Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petnr. Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. 11. It is argued that the petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petnrs. are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communil G. O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 14 or 15 on the specific Articles discussed above.
### Response:
0
### Explanation:
It will be noticed that while Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right8. The learned AdvocateGeneral appearing for the State contends that the provisions of this Article have to be read along with other Articles in the Constitution. He urges that Art. 46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Ct. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learnedl of Madras even contends that the provisions of Art. 46 override the provisions of Art. 29(2).We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Art. in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the ConstitutionIf the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of Art, 1611. It is argued that the petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates.This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petnrs. are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communil G. O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 14 or 15 on the specific Articles discussed above.
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KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY & ANR Vs. PRINCIPAL SIR SYED INSTITUTE FOR TECHNICAL STUDIES & ANR | before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that ground. 16. The question we shall address now is whether preference shown by the Commission to the State run and aided educational institutions in fixing tariff was justified having regard to the purpose for which supply was required. The expression purpose means, as per the Concise Oxford English Dictionary, Tenth Edition, published by Oxford University Press:- 1. the reason for which something is done or for which something exists. 2. resolve or determination. In the given context, the noun purpose would fit into the first meaning given in the aforesaid dictionary, which we have quoted above. Contention of the writ petitioners is that the purpose of both of these two sets of educational institutions remain the same being imparting education and no discrimination in tariff rate could be made between them having regard to Section 62 (3) of the 2003 Act. 17. The writ petitioners have advanced two-fold submission on this aspect. First, they have contended that capacity to pay cannot be the determinant factor in electricity tariff fixing exercise, relying on the case of Rohtas industries Ltd. vs. Chairman, Bihar State Electricity Board & Ors. (1984 (Supp) SCC 161) . This judgment was delivered construing Section 49(3) of the Electricity Supply Act, 1948. In the case of M.P. Electricity Board & Ors. vs. Shiv Narayan & Ors. (2005) 7 SCC 283 , this Court found professional activities of an advocate did not constitute commercial activity so as to attract commercial rate of electricity. But ratio of these two decisions do not aid the writ petitioners. So far as meaning of the expression commercial is concerned, we have dealt with that issue earlier in this judgment. The SFEIs have been specifically included under the heading commercial and it is not a case where their character is being assessed inferentially, treating their activities as commercial in a general sense of the term. 18. The Writ Petitioners have argued that they cannot indulge in fixing excessive fees in respect of their schools and in this regard two statutory instruments have been brought to our notice which postulates restriction on collection of excessive fees. These are Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non- Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 and Kerala Education Rules, the latter having been referred to in the judgment under appeal. On the basis of these statutory provisions, the Writ Petitioners seek to contend that they cannot indulge in profiteering and have to charge fees to the students as regulated by the authorities. But in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutions. 19. We have already referred to the dictionary meaning of the expression purpose. The writ petitioners contention is that the reason of their formation or existence is imparting education and this is so for the Government run and aided institutions also. On this basis, they argue that different tariffs could not be charged to these two sets of institutions. We are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases. 20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions. | 1[ds]We find from the judgment under appeal that challenge to the tariff notification on the ground of being violative of the provisions of Article 14 of the Constitution of India was not pressed by the respondents-writ petitioners. The writ petitioners also did not seriously press their challenge to the subject notification on the question of lack of suo motu power of the Commission to fix tariff before the Division Bench. The main point which was urged and argued before the Division Bench was as to whether under the provisions of Section 62(3) of the 2003 Act, the differentiation of SFEIs from the other set of institutions for the purpose of fixing of tariff was legally justifiable or not. The Division Bench decided the issue in favour of the SFEIs. On behalf of the appellant, the argument that the respondents (writ petitioners) had alternative remedy in the form of appeal under Section 111 of the 2003 Act has been reiterated and it has been submitted that for this reason alone, the writ petitions ought to have been dismissed. This contention was rejected by the First Court and both the First Court and the Division Bench have addressed the points raised in the writ petition on merit. The objection based on subsistence of alternative remedy having been rejected by the Court of first instance as also the appellate forum, we do not think upon granting leave under Article 136 of the Constitution of India, it would be proper on our part to entertain this question on maintainability of the writ petitions again and relegate the dispute to the Statutory Authority solely on this ground. There is no deep factual dispute involved in these proceedings. These are also not cases where exercise of writ jurisdiction can be held to be fundamentally flawed, like in a case involving purely private dispute. In this perspective, entertaining such objection at this stage would result in wastage of judicial time and also lead to adding unnecessary layers to the decision making process on a particular lisThere is a negative mandate of the legislature upon the Commission in this sub-section. While fixing tariff, the Commission cannot show undue preference to any consumer of electricity. The Commission, however, is vested with the power to prescribe differential rates according to the consumers load factor, power factor, voltage, total consumption of electricity during any specified period of time at which supply is required. So far as fixing different rates for these two categories of the educational institutions, these factors did not come into play. The other permissible differentiating factors are geographical position of any area, the nature of supply and the purpose for which the supply is required. As regards this set of differentiating factors, the tariff advantage for government run and aided educational institutions do not appear to be based on geographical position or nature of supply. The Commission however has justified the classification of the aforesaid two sets of tariffs on the basis of purpose for which supply is required by the consumers9. As regards the argument of the writ petitioners on the point of violation of the principles of natural justice, the Division Bench found uploading of tariff proposal on the website to be broadly in compliance with the statutory requirement. We find from the judgment of the First Court that the Commission had issued notice inviting objections/suggestions from the Public Consumers and other stake holders. In the notice only, it was mentioned that the details were available in the website of the Commission and the same was available on request. Such details included the proposed higher tariff rate for the SFEIs. We do not find much discussion on the second plank of the writ petitioners argument on breach of the principles of natural justice in the judgment under appeal. Neither of the two cases cited on behalf of the writ petitioners on the point of the Commission being a quasi-judicial body deal with the aspect of necessity to disclose reason in a tariff fixing order by a statutory body like the Commission. In the case of State of Gujarat (supra), the question this Court dealt with was on qualification of a Chairman of the Regulatory Commission. While dealing with that question, it was held that the State Commissions have the trappings of a Court. In the case of PTC India Ltd. (supra), the dispute was on the point as to whether a Regulation framed under Section 178 of the 2003 Act was appealable under Section 111 of the said statute. While exploring that controversy, a Constitution Bench of this Court examined the scope of jurisdiction of the Commission and found tariff fixation under Section 62 of the 2003 Act to be quasi-judicial function. One of the reasons for such finding was that the tariff order was appealable under the statute11. Once the Division Bench observed that publication in the website was sufficient, the writ petitioners may not have had forfeited their right to challenge the tariff notification in the Writ Court or the appellate forum. But having failed to generate any lis on the tariff proposal by not raising any kind of objection, it would not be open to them to demand disclosure of reasons along with publication of the tariff rates. The Commissions role as a quasi-judicial body or it having trappings of a Court would emerge only if it was called upon to adjudicate a dispute. As we have already discussed, no dispute had been generated by the writ petitioners on the basis of Commissions proposal which would have required it to undertake some form of adjudicatory exercise. In such a situation, the exercise of fixing tariff has to be undertaken as a quasi-legislative act only, which ordinarily a tariff-fixing exercise is. Issue of the subject tariff notification unaccompanied by reason thus cannot be faulted for having breached the principles of natural justice. The forum of appeal was open to them. But mere existence of an appellate forum in the statute would not require a tariff-fixing body to disclose the reason for stipulating tariff-rate in each individual case. If any appeal is preferred in relation to any specific case, the Commission would then have to justify fixing a tariff rate in such a case. The duty to disclose reason would crystallise then only, in a situation where a particular tariff fixing proposal goes without any objection after its draft publication. Not having gone to the appellate forum, the writ petitioners approached the Writ Court. Before the Writ Court, such tariff fixation was open to challenge in the same way tariffs fixed in exercise of quasi-legislative or administrative power is subjected to judicial review. Thus, in our opinion, in absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before the State Commission, the question of disclosure of reason for such fixation would not arise at the stage of finalisation of tariff. If such tariff orders are later challenged before the appellate forum or the Writ Court, the Commission would have to defend its decision the same way an administrative or quasi-legislative decision on fixing of tariff is defended. Since we have taken this view, we do not consider it necessary to deal with the authorities which lay down the dictum of law that a quasi-judicial authority is required to disclose reasons in support of its decision14. What these authorities lay down in substance is that the Self Financing Educational Institutions are not permitted to indulge in profiteering but that does not imply they cannot generate reasonable revenue surplus to enable them to continue with their activities. In addition, the writ petitioners have submitted that many of them are charitable organisations and not for profit entities and they cannot be clubbed together with other commercial organisations. We find from the subject-notification that SFEIs have been categorised with entities like cinema studios, hotels and restaurants, construction works etc., and heading of LT-VII tariff items is commercial. While an educational institution in our ordinary perception may not be performing functions similar to the other entities who undertake business ventures, a tariff fixing body is not required to proceed on the basis of such common perception. The duty of such body is to determine which rate an organisation shall pay, and entities working in diverse fields can be clubbed together under a common umbrella to be subjected to a common rate. In that context, for exercise of this nature, the heading commercial cannot be constructed to restrict the entities that can come under that head on the basis of the nature of their activities, i.e. whether such activities have commercial attributes or not. Selection of heading is an exercise of convenience in fixing tariff rates and not necessarily the controlling factor in choosing the entities included under that headingBut it has been recorded in the judgment under appeal that such fact was not substantiated before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that groundBut in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutionsWe are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions. | 1 | 5,476 | 2,143 | ### Instruction:
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before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that ground. 16. The question we shall address now is whether preference shown by the Commission to the State run and aided educational institutions in fixing tariff was justified having regard to the purpose for which supply was required. The expression purpose means, as per the Concise Oxford English Dictionary, Tenth Edition, published by Oxford University Press:- 1. the reason for which something is done or for which something exists. 2. resolve or determination. In the given context, the noun purpose would fit into the first meaning given in the aforesaid dictionary, which we have quoted above. Contention of the writ petitioners is that the purpose of both of these two sets of educational institutions remain the same being imparting education and no discrimination in tariff rate could be made between them having regard to Section 62 (3) of the 2003 Act. 17. The writ petitioners have advanced two-fold submission on this aspect. First, they have contended that capacity to pay cannot be the determinant factor in electricity tariff fixing exercise, relying on the case of Rohtas industries Ltd. vs. Chairman, Bihar State Electricity Board & Ors. (1984 (Supp) SCC 161) . This judgment was delivered construing Section 49(3) of the Electricity Supply Act, 1948. In the case of M.P. Electricity Board & Ors. vs. Shiv Narayan & Ors. (2005) 7 SCC 283 , this Court found professional activities of an advocate did not constitute commercial activity so as to attract commercial rate of electricity. But ratio of these two decisions do not aid the writ petitioners. So far as meaning of the expression commercial is concerned, we have dealt with that issue earlier in this judgment. The SFEIs have been specifically included under the heading commercial and it is not a case where their character is being assessed inferentially, treating their activities as commercial in a general sense of the term. 18. The Writ Petitioners have argued that they cannot indulge in fixing excessive fees in respect of their schools and in this regard two statutory instruments have been brought to our notice which postulates restriction on collection of excessive fees. These are Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non- Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 and Kerala Education Rules, the latter having been referred to in the judgment under appeal. On the basis of these statutory provisions, the Writ Petitioners seek to contend that they cannot indulge in profiteering and have to charge fees to the students as regulated by the authorities. But in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutions. 19. We have already referred to the dictionary meaning of the expression purpose. The writ petitioners contention is that the reason of their formation or existence is imparting education and this is so for the Government run and aided institutions also. On this basis, they argue that different tariffs could not be charged to these two sets of institutions. We are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases. 20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions.
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appellate forum in the statute would not require a tariff-fixing body to disclose the reason for stipulating tariff-rate in each individual case. If any appeal is preferred in relation to any specific case, the Commission would then have to justify fixing a tariff rate in such a case. The duty to disclose reason would crystallise then only, in a situation where a particular tariff fixing proposal goes without any objection after its draft publication. Not having gone to the appellate forum, the writ petitioners approached the Writ Court. Before the Writ Court, such tariff fixation was open to challenge in the same way tariffs fixed in exercise of quasi-legislative or administrative power is subjected to judicial review. Thus, in our opinion, in absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before the State Commission, the question of disclosure of reason for such fixation would not arise at the stage of finalisation of tariff. If such tariff orders are later challenged before the appellate forum or the Writ Court, the Commission would have to defend its decision the same way an administrative or quasi-legislative decision on fixing of tariff is defended. Since we have taken this view, we do not consider it necessary to deal with the authorities which lay down the dictum of law that a quasi-judicial authority is required to disclose reasons in support of its decision14. What these authorities lay down in substance is that the Self Financing Educational Institutions are not permitted to indulge in profiteering but that does not imply they cannot generate reasonable revenue surplus to enable them to continue with their activities. In addition, the writ petitioners have submitted that many of them are charitable organisations and not for profit entities and they cannot be clubbed together with other commercial organisations. We find from the subject-notification that SFEIs have been categorised with entities like cinema studios, hotels and restaurants, construction works etc., and heading of LT-VII tariff items is commercial. While an educational institution in our ordinary perception may not be performing functions similar to the other entities who undertake business ventures, a tariff fixing body is not required to proceed on the basis of such common perception. The duty of such body is to determine which rate an organisation shall pay, and entities working in diverse fields can be clubbed together under a common umbrella to be subjected to a common rate. In that context, for exercise of this nature, the heading commercial cannot be constructed to restrict the entities that can come under that head on the basis of the nature of their activities, i.e. whether such activities have commercial attributes or not. Selection of heading is an exercise of convenience in fixing tariff rates and not necessarily the controlling factor in choosing the entities included under that headingBut it has been recorded in the judgment under appeal that such fact was not substantiated before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that groundBut in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutionsWe are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions.
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THE STATE OF MADHYA PRADESH Vs. YOGENDRA SINGH JADON | HEMANT GUPTA, J. 1. The State is aggrieved against an order passed by the High Court of Madhya Pradesh on 2 nd May, 2016 whereby the proceedings against the respondents, both sons of late Manohar Singh Jadon, for an offence under Sections 420, 120-B of the Indian Penal Code, 1860 were quashed. 2. A charge sheet for the offences under Sections 420, 406, 409, 120B IPC and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 was filed on 9 th July, 2008 consequent to registration of FIR No. 3 of 2007 on 23 rd June, 2007. The allegation was that Manohar Singh Jadon, deceased father of the respondents in connivance with other employees of District Cooperative Kendriya Bank Maryadit, Shajapur committed financial irregularities on the basis of forged documents by misusing his post and by providing fake loan to the relatives. Manohar Singh Jadon was President of the Bank from 5 th February, 1997 to 26 th March, 2002 and from 27 th March, 2002 to 7 th May, 2004. Harshvardhan Singh Jadon (accused-respondent No. 2) is the proprietor of M/s. Harshvardhan & Brothers whereas Yogendra Singh (accused-respondent No. 1) is the proprietor of M/s. Sarohar Trading Company. Ghanshyam Sharma, General Manager, Ramanlal Acharya, Manager, Ram Singh Yadav, General Manager were also arrayed as accused. It was alleged that accused Harshvardhan Singh Jadon submitted an application on 2 nd November, 2000 for grant of cash credit limit of Rs.25 lakhs and that the cash credit limit was sanctioned without following the due procedure. It was also alleged that mortgage deed was not registered nor signature of original loanee was found on the mortgage paper. It is also pointed out that an amount of Rs.59,88,327/- was balance on 1 st December, 2001 even after depositing Rs.25 lakhs and that the President has done the renewal of cash credit limit at his own level and its confirmation was got done later on from the loan Sub-Committee, while the case was of the son of the President alone. In respect of Yogendra Singh, again the allegation is that cash credit limit of Rs.25 lakhs was sanctioned on the basis of his application dated 30 th July, 2001 without completing any of the procedural requirements and without mortgage of any of the property. Smt. Saroj Singh mortgaged the land but without any valuation. The surety of Ishwar Singh was taken. The same person mortgaged land as in the case of Harshvardhan. Similar is the assertion in respect of registration of mortgage. It was also alleged that a sum of Rs.25,65,894/- is the balance as on 31 st March, 2002 even after withdrawal beyond the approved credit limit of Rs.25 lakhs. 3. The Special Judge passed an order of framing of charges against Harshvardhan Singh Jadon and Yogendra Singh Jadon apart from other accused on 24 th February, 2014. Such order was challenged by the respondents by way of a criminal revision. 4. The High Court in the Revision Petition found that the offences under Sections 420 and 120-B IPC are not made out against the respondents. The Court held that there is no assertion that the cash credit facility obtained with a knowledge that they will not repay the loan amount. The Court held as under: 12. It may be that the Officers of the Bank, because of the fact that father of the applicants was President of the Bank, had acted in disregard of the relevant rules and regulations in that behalf of confer benefit upon the applicants, but that will give rise to liability against the officers of the bank who failed to discharge their duties in accordance with prescribed norms and regulations. However, that may not be a ground to proceed against a person who has been granted cash credit facility. xx xx xx 14. In the instant case, the uncontroverted allegations taken in their entirety do not prima facie establish that the applicants deceived the Bank Authorities or fraudulently or dishonestly induced them to sanction cash credit facility. Thus, the basic ingredient to constitute the offence of 420 of IPC is totally missing in the chargesheet. 5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC. | 1[ds]5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC. | 1 | 969 | 199 | ### 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:
HEMANT GUPTA, J. 1. The State is aggrieved against an order passed by the High Court of Madhya Pradesh on 2 nd May, 2016 whereby the proceedings against the respondents, both sons of late Manohar Singh Jadon, for an offence under Sections 420, 120-B of the Indian Penal Code, 1860 were quashed. 2. A charge sheet for the offences under Sections 420, 406, 409, 120B IPC and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 was filed on 9 th July, 2008 consequent to registration of FIR No. 3 of 2007 on 23 rd June, 2007. The allegation was that Manohar Singh Jadon, deceased father of the respondents in connivance with other employees of District Cooperative Kendriya Bank Maryadit, Shajapur committed financial irregularities on the basis of forged documents by misusing his post and by providing fake loan to the relatives. Manohar Singh Jadon was President of the Bank from 5 th February, 1997 to 26 th March, 2002 and from 27 th March, 2002 to 7 th May, 2004. Harshvardhan Singh Jadon (accused-respondent No. 2) is the proprietor of M/s. Harshvardhan & Brothers whereas Yogendra Singh (accused-respondent No. 1) is the proprietor of M/s. Sarohar Trading Company. Ghanshyam Sharma, General Manager, Ramanlal Acharya, Manager, Ram Singh Yadav, General Manager were also arrayed as accused. It was alleged that accused Harshvardhan Singh Jadon submitted an application on 2 nd November, 2000 for grant of cash credit limit of Rs.25 lakhs and that the cash credit limit was sanctioned without following the due procedure. It was also alleged that mortgage deed was not registered nor signature of original loanee was found on the mortgage paper. It is also pointed out that an amount of Rs.59,88,327/- was balance on 1 st December, 2001 even after depositing Rs.25 lakhs and that the President has done the renewal of cash credit limit at his own level and its confirmation was got done later on from the loan Sub-Committee, while the case was of the son of the President alone. In respect of Yogendra Singh, again the allegation is that cash credit limit of Rs.25 lakhs was sanctioned on the basis of his application dated 30 th July, 2001 without completing any of the procedural requirements and without mortgage of any of the property. Smt. Saroj Singh mortgaged the land but without any valuation. The surety of Ishwar Singh was taken. The same person mortgaged land as in the case of Harshvardhan. Similar is the assertion in respect of registration of mortgage. It was also alleged that a sum of Rs.25,65,894/- is the balance as on 31 st March, 2002 even after withdrawal beyond the approved credit limit of Rs.25 lakhs. 3. The Special Judge passed an order of framing of charges against Harshvardhan Singh Jadon and Yogendra Singh Jadon apart from other accused on 24 th February, 2014. Such order was challenged by the respondents by way of a criminal revision. 4. The High Court in the Revision Petition found that the offences under Sections 420 and 120-B IPC are not made out against the respondents. The Court held that there is no assertion that the cash credit facility obtained with a knowledge that they will not repay the loan amount. The Court held as under: 12. It may be that the Officers of the Bank, because of the fact that father of the applicants was President of the Bank, had acted in disregard of the relevant rules and regulations in that behalf of confer benefit upon the applicants, but that will give rise to liability against the officers of the bank who failed to discharge their duties in accordance with prescribed norms and regulations. However, that may not be a ground to proceed against a person who has been granted cash credit facility. xx xx xx 14. In the instant case, the uncontroverted allegations taken in their entirety do not prima facie establish that the applicants deceived the Bank Authorities or fraudulently or dishonestly induced them to sanction cash credit facility. Thus, the basic ingredient to constitute the offence of 420 of IPC is totally missing in the chargesheet. 5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC.
### Response:
1
### Explanation:
5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC.
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Ramesh Narang Vs. Rama Narang and Others | conviction under Section 267 of the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded.Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law Board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the Company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provisions. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company.It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when found erroneous.14. Finally, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it was not necessary for the trial Judge to examine the same. The submission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was known to secure a declaration that he is entitled to function as Chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (e) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined the issue.Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the function of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed. | 1[ds]It is not possible to accede to the contention of Mr. Sibal that the relief in terms of prayer (a) cannot be granted, once the relief in terms of prayer (b) is set aside. We are unable to find any merit in the contention that the suit will not be maintainable in case respondent no. 1 was not entitled to be appointed and continued as Managing Director and Chairman of the company. The suit is not instituted only by respondent no. 1 but by the company and one more Director. Even assuming that respondent no. 1 is not entitled to prosecute the suit as Director or Managing Director, still we are unable to appreciate how the suit will not be maintainable because the respondent no. 1 is a shareholder of the company and can certainly proceed with the suit and challenge the validity of the meeting alleged to have been held by appellant on July 13, 1992. It is, therefore, not possible to accede to the contention that in case prayer (b) cannot be granted, then prayer (a) should also be denied.8. The principal contention in this appeal, and which was also vehemently argued before the learned Single Judge, was in respect of capacity of respondent no. 1 to be appointed as Director and Managing Director of the company after recording of conviction by Additional Sessions Judge, Delhi. The fact that the respondent no. 1 was convicted by order dated December 22, 1986 and sentenced to undergo rigorous imprisonment for 2 1/2 years for an offence punishable under Section 420 read with Section 114 and Section 120B of the Indian Penal Code is not in dispute. It is equally not in dispute that respondent no. 1 was convicted of offences involving moral turpitude. The appointment of Respondent No. 1 after amalgamation of the two companies as Director and Managing Director were made on September 21, 1988 and June 25, 1990. It is not in dispute that respondent no. 1 was appointed as Director and Managing Director in the board meeting after the date of conviction, i.e., after December 22, 1986. Relying on these undisputed facts, itwas contended on behalf of the appellantthat the learned Single Judge was in error in holding that the appointment of respondent no. 1 or continuation of respondent no. 1 as Managing Director is permissible inspite of clear bar under Section 267 of the Companies Act. Reference was made to provisions of Section 274 of the Companies Act which deal with disqualification of a Director on a conviction being recorded by a Criminal Court for offence involving moral turpitude and in respect of which imprisonment of not less than six months is imposed.(2) of Section 274 entitles the Central Government to remove the disqualification incurred by any person either generally or in relation to any company or companies specified in a notification to be published in the Official Gazette. Such a power to remove the disqualification is not available in respect of Managing Director and the provisions of Section 267 of the Companies Act make the bar to the appointment on conviction absolute. Section 283 of the Companies Act provides that the office of a Director shall become vacant if the Director is convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof for not less than six months.(2) of Section 283, inter alia, provides that the disqualification shall not take effect for thirty days from the date of imposition of sentence. This is a period in which the Director, who is convicted, can prefer an appeal. Thethen provides that in case an appeal is preferred, then the disqualification shall not take effect for a period of seven days from the date of disposal of the appeal and this rule is applied to further appeals which the accused can prefer. The perusal of the provisions of Sections 267, 274 and 283 makes it clear that the Legislature had contemplated cases of disqualification of a Director on the one hand and Managing Director on the other. In case of a Director, the disqualification may not operate if the Central Government issues a notification or the Director files an appeal within the period of limitation. Such a provision is absent in respect of disqualification incurred by a Managing Director on being convicted of an offence involving moral turpitude. The distinction in the two cases is of crucial relevance because it is obvious that the Legislature was very particular that the benefit of an appeal or the power to remove the disqualification by the Central Government should not be available in the case of Managing Director. The Legislature has enacted the provisions of Section 267 by taking into consideration the public interest and the interest of not only the shareholders but of the general public, or it will be difficult for a person convicted of an offence involving moral turpitude to carry out the affairs of the company and which is likely to result into adverse impact on the functioning of the company. It is, therefore, obvious that respondent no. 1 cannot be appointed or continued as Managing Director of the company in view of the specific provisions of Section 267 of the Companiessection makes it clear that the Appellate Court can suspend the execution of the sentence or the execution of the order and in respect of the order of conviction there is no question of execution and consequentlyare unable to find any merit in the contention. The Appellate Court exercising powers under(1) of Section 389 of the Code is not concerned with the consequences which may flow from the order of conviction in regard to the provisions of some other statute.The Appellate Court which entertains appeal against the order of conviction is entitled to suspend the execution of the sentence or the orders which flow as a consequence of the judgment either of conviction or acquittal and such a Criminal Appellate Court is not concerned with the consequences in respect of some other statutes which are visited upon the person who is convicted by a Criminal Court. The submission of Mr. Cooper that the order of conviction will have automatic impact with reference to some other statutes is devoid of any merit because the Legislature has taken sufficient precaution in respect of those other statutes to protect a person who has preferred an appeal against the order of conviction. As mentioned hereinabove, as regards the recording of order of conviction against a Director, the conviction will not automatically disqualify the Director of a company from holding the post, in case where appeal is preferred within stipulated period of limitation or where the Central Government exempts such person or the company from disqualification. Section 8 of the Representation of the People Act, 1951, provides that the disqualification shall not take effect until three months have elapsed from the date of conviction or, if an appeal or revision application against the order of conviction is preferred, then until that appeal or application is disposed of by the Court. Section 11 of the Representation of the People Act confers power upon the Election Commission to remove any disqualification or reduce the period of such disqualification. It is, therefore, obvious that whenever the Legislature thought it fit, statutory provisions were made to lessen the rigour of the consequences of recording of conviction. The Legislature, in its wisdom, did not make any such provision under Section 267 of the Companies Act when conviction in recorded against a person who is Managing Director. In our judgment, it is not permissible for the Appellate Court which entertains the appeal against the order of conviction to suspend the order of conviction and the only power available under Section 389(1) of the Code of Criminal Procedure is to suspend the execution of the sentence of the order and which expression does not includesubmission is fallacious and cannot be acceded to. The inherent powers cannot be exercised to find some means to pass orders which are not permissible under the Code. We are unable to appreciate how it can be even suggested that conviction can be suspended to secure the ends of justice. In any event, it is not for the Criminal Appellate Court hearing an appeal to decide what are the ends of justice in respect of enforcement of provisions of some other statutes. The powers of the Appellate Court flow from the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of Section 482, of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of therespect, we are unable to share the view taken by the Division Bench for the reasons which have been set out hereinabove. The mere fact that the order of conviction leads to some consequences in respect of provisions of other statutes is not sufficient for assuming powers which the Appellate Court does not possess under the Code of Criminal Procedure. It was not brought to the attention of the Division Bench that the other statutes like Representation of the People Act, Companies Act etc. do make specific provisions to reduce the rigour of the order of conviction and the Legislature did not expect the Appellate Court exercising powers under the Code to examine the harm which may be caused by order of conviction. The powers of the Criminal Court flow from the Code and it is not open for the Criminal Court to assume powers only because the convicted person is likely to suffer certain disqualification under the provisions of otherare unable to accept the conclusion that it is open for the Appellate Court to suspend the order of conviction. A reference was made to a decision reported, in AIR 1956 All 297 : (1956 Cri LJ 561) (Bansi v. Hari Singh), but save and except some stray observations, Mr. Cooper could not point out anything to support his submission as regards suspension of order ofhardly requires to be stated that the purpose of appeal is to get the conviction order vacated but pending appeal it is not open to wipe out the order of conviction by claiming that the order of conviction can be suspended. The decision of the Supreme Court, in our judgment, is of noare unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction issubmission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of theare unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when foundsubmission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was known to secure a declaration that he is entitled to function as Chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (e) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined thethe submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed. | 1 | 7,619 | 2,595 | ### 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:
conviction under Section 267 of the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded.Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law Board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the Company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provisions. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company.It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when found erroneous.14. Finally, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it was not necessary for the trial Judge to examine the same. The submission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was known to secure a declaration that he is entitled to function as Chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (e) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined the issue.Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the function of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed.
### Response:
1
### Explanation:
the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of Section 482, of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of therespect, we are unable to share the view taken by the Division Bench for the reasons which have been set out hereinabove. The mere fact that the order of conviction leads to some consequences in respect of provisions of other statutes is not sufficient for assuming powers which the Appellate Court does not possess under the Code of Criminal Procedure. It was not brought to the attention of the Division Bench that the other statutes like Representation of the People Act, Companies Act etc. do make specific provisions to reduce the rigour of the order of conviction and the Legislature did not expect the Appellate Court exercising powers under the Code to examine the harm which may be caused by order of conviction. The powers of the Criminal Court flow from the Code and it is not open for the Criminal Court to assume powers only because the convicted person is likely to suffer certain disqualification under the provisions of otherare unable to accept the conclusion that it is open for the Appellate Court to suspend the order of conviction. A reference was made to a decision reported, in AIR 1956 All 297 : (1956 Cri LJ 561) (Bansi v. Hari Singh), but save and except some stray observations, Mr. Cooper could not point out anything to support his submission as regards suspension of order ofhardly requires to be stated that the purpose of appeal is to get the conviction order vacated but pending appeal it is not open to wipe out the order of conviction by claiming that the order of conviction can be suspended. The decision of the Supreme Court, in our judgment, is of noare unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction issubmission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of theare unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when foundsubmission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was known to secure a declaration that he is entitled to function as Chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (e) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined thethe submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed.
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CHATTAR SINGH Vs. MADHO SINGH | shall be settled with such proprietor or such other person by the Government on such terms and conditions as it may determine. 9. Section 4 makes it clear that all lands (cultivable, barren or bir), forest, trees, village- sites, hats, bazars, mela-grounds shall vest in the State automatically free from all encumbrances. Section 4(2) provides saving of only khud-kasht land, which is so recorded in the Samvat year 2007 corresponding to the agricultural year 1950-51 before the date of vesting. The date of vesting is 2.10.1951. Khud-kasht has been defined in Section 2(c) as under: 2(c) Khud-kasht means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land; 10. In order to save the land from vesting Section 4(2) requires land to be personally cultivated by Zamindar or through employees or hired labourers and another sine qua non in that it should be so recorded in revenue papers as khud-kasht, otherwise all land vest in the State as provided in Section 4(1)(a). Once the land is recorded as Charnoi i.e., common land reserved for grazing of cattles of villagers, such common land clearly vests in the State as provided in Section 4(1) (a) all the land, the forest, trees, village-sites, pathways etc. vest in the State absolutely. Since the land was Charnoi i.e., common grazing land for cattle of the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State. 11. The provisions contained in Section 5(f) in Madhya Bharat Zamindari Abolition Act did not confer any rights on Zamindars on such common land and did not save same from vesting, once it was recorded as Charnoi for public purpose before the date of vesting in the year 1950-51 i.e., Samvat year 2007. Samvat year used to commence from 1 st July, and ended on 30 th June of next Gregorian calendar year. The provision of Section 5(f) would not come into play to confer any right on such common land. 12. In Shrimant Sardar Chandrojirao Angre (supra), this Court has observed as under: It would seem therefore that the word grove conveys compactness or at any rate substantial compactness to be recognized as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5(b)(iv) does not require however that the trees needs be fruit-bearing trees nor does it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a grove-land. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the roadside intended to furnish shade to the road would not fulfil the requirements of a grove even as understood in ordinary parlance. emphasis supplied It is apparent from aforesaid observations that grove to be recognized as such should be of such trees when fully grown preclude land on which they are standing from being primarily used for a purpose other than that of grove-land. This Court further observed that trees standing on the side of the road would not fulfil the requirement of a grove even as understood in the ordinary sense. Thus, when land is primarily used for Charnoi i.e. common grazing land for cattle of villagers, it would not fall into the category of grove and provision of Section 5(f) would not save such trees from vesting. The village sites, comprise of common land reserved for villagers, vest in State. It cannot be retained by Zamindar as he had no existing right on such land even before date of vesting, it being common land, it belonged to villagers. No individual can claim that such land belongs to him exclusively. The fruit bearing trees irrespective of numbers have also vested in the State under Section 4(1)(a). No right can be claimed on trees on such common land under Section 5(f) by a proprietor. The decision taken by the Additional Commissioner while holding that land being grazing land has vested in the State was in accordance with law. The Board of Revenues order to the contrary was perverse and illegal. 13. The question as to title in view of the provisions under the M.P. Land Revenue Code, 1959 is the domain of civil court, the Trial Court was absolutely right in decreeing the suit in favour of villagers. Such common land could not have been settled at all in favour of the erstwhile proprietor or his legal representatives. The approach of the First Appellate Court holding it to be grove was perverse and contrary to the provisions and the law laid down by this Court in Shrimant Sardar Chandrojirao Angre (supra). The First Appellate Court has failed to understand the purport of Charnoi which is a common land reserved for the public purpose and is not exclusively for grazing of cattle of Zamindar. Such village sites/common land clearly vests in the State automatically free from all encumbrances. 14. Thus, we have absolutely no hesitation to reject the submissions raised by the learned senior counsel appearing on behalf of the appellant and even the decision in Shrimant Sardar Chandrojirao Angre (supra) does not support the cause espoused that said case did not relate to Charnoi land. As such, decision is not at all applicable, even otherwise decision negates submission raised on behalf of appellants that it was grove. 15. Thus, for the aforesaid reasons, we find absolutely no ground to interfere with the impugned judgment of the High Court. | 0[ds]10. In order to save the land from vesting Section 4(2) requires land to be personally cultivated by Zamindar or through employees or hired labourers and another sine qua non in that it should be so recorded in revenue papers as khud-kasht, otherwise all land vest in the State as provided in Section 4(1)(a). Once the land is recorded as Charnoi i.e., common land reserved for grazing of cattles of villagers, such common land clearly vests in the State as provided in Section 4(1) (a) all the land, the forest, trees, village-sites, pathways etc. vest in the State absolutely. Since the land was Charnoi i.e., common grazing land for cattle of the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State11. The provisions contained in Section 5(f) in Madhya Bharat Zamindari Abolition Act did not confer any rights on Zamindars on such common land and did not save same from vesting, once it was recorded as Charnoi for public purpose before the date of vesting in the year 1950-51 i.e., Samvat year 2007. Samvat year used to commence from 1 st July, and ended on 30 th June of next Gregorian calendar year. The provision of Section 5(f) would not come into play to confer any right on such common landIt is apparent from aforesaid observations that grove to be recognized as such should be of such trees when fully grown preclude land on which they are standing from being primarily used for a purpose other than that of grove-land. This Court further observed that trees standing on the side of the road would not fulfil the requirement of a grove even as understood in the ordinary sense. Thus, when land is primarily used for Charnoi i.e. common grazing land for cattle of villagers, it would not fall into the category of grove and provision of Section 5(f) would not save such trees from vesting. The village sites, comprise of common land reserved for villagers, vest in State. It cannot be retained by Zamindar as he had no existing right on such land even before date of vesting, it being common land, it belonged to villagers. No individual can claim that such land belongs to him exclusively. The fruit bearing trees irrespective of numbers have also vested in the State under Section 4(1)(a). No right can be claimed on trees on such common land under Section 5(f) by a proprietor. The decision taken by the Additional Commissioner while holding that land being grazing land has vested in the State was in accordance with law. The Board of Revenues order to the contrary was perverse and illegal13. The question as to title in view of the provisions under the M.P. Land Revenue Code, 1959 is the domain of civil court, the Trial Court was absolutely right in decreeing the suit in favour of villagers. Such common land could not have been settled at all in favour of the erstwhile proprietor or his legal representatives. The approach of the First Appellate Court holding it to be grove was perverse and contrary to the provisions and the law laid down by this Court in Shrimant Sardar Chandrojirao Angre (supra). The First Appellate Court has failed to understand the purport of Charnoi which is a common land reserved for the public purpose and is not exclusively for grazing of cattle of Zamindar. Such village sites/common land clearly vests in the State automatically free from all encumbrances14. Thus, we have absolutely no hesitation to reject the submissions raised by the learned senior counsel appearing on behalf of the appellant and even the decision in Shrimant Sardar Chandrojirao Angre (supra) does not support the cause espoused that said case did not relate to Charnoi land. As such, decision is not at all applicable, even otherwise decision negates submission raised on behalf of appellants that it was grove15. Thus, for the aforesaid reasons, we find absolutely no ground to interfere with the impugned judgment of the High Court. | 0 | 2,872 | 763 | ### Instruction:
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shall be settled with such proprietor or such other person by the Government on such terms and conditions as it may determine. 9. Section 4 makes it clear that all lands (cultivable, barren or bir), forest, trees, village- sites, hats, bazars, mela-grounds shall vest in the State automatically free from all encumbrances. Section 4(2) provides saving of only khud-kasht land, which is so recorded in the Samvat year 2007 corresponding to the agricultural year 1950-51 before the date of vesting. The date of vesting is 2.10.1951. Khud-kasht has been defined in Section 2(c) as under: 2(c) Khud-kasht means land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land; 10. In order to save the land from vesting Section 4(2) requires land to be personally cultivated by Zamindar or through employees or hired labourers and another sine qua non in that it should be so recorded in revenue papers as khud-kasht, otherwise all land vest in the State as provided in Section 4(1)(a). Once the land is recorded as Charnoi i.e., common land reserved for grazing of cattles of villagers, such common land clearly vests in the State as provided in Section 4(1) (a) all the land, the forest, trees, village-sites, pathways etc. vest in the State absolutely. Since the land was Charnoi i.e., common grazing land for cattle of the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State. 11. The provisions contained in Section 5(f) in Madhya Bharat Zamindari Abolition Act did not confer any rights on Zamindars on such common land and did not save same from vesting, once it was recorded as Charnoi for public purpose before the date of vesting in the year 1950-51 i.e., Samvat year 2007. Samvat year used to commence from 1 st July, and ended on 30 th June of next Gregorian calendar year. The provision of Section 5(f) would not come into play to confer any right on such common land. 12. In Shrimant Sardar Chandrojirao Angre (supra), this Court has observed as under: It would seem therefore that the word grove conveys compactness or at any rate substantial compactness to be recognized as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5(b)(iv) does not require however that the trees needs be fruit-bearing trees nor does it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a grove-land. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the roadside intended to furnish shade to the road would not fulfil the requirements of a grove even as understood in ordinary parlance. emphasis supplied It is apparent from aforesaid observations that grove to be recognized as such should be of such trees when fully grown preclude land on which they are standing from being primarily used for a purpose other than that of grove-land. This Court further observed that trees standing on the side of the road would not fulfil the requirement of a grove even as understood in the ordinary sense. Thus, when land is primarily used for Charnoi i.e. common grazing land for cattle of villagers, it would not fall into the category of grove and provision of Section 5(f) would not save such trees from vesting. The village sites, comprise of common land reserved for villagers, vest in State. It cannot be retained by Zamindar as he had no existing right on such land even before date of vesting, it being common land, it belonged to villagers. No individual can claim that such land belongs to him exclusively. The fruit bearing trees irrespective of numbers have also vested in the State under Section 4(1)(a). No right can be claimed on trees on such common land under Section 5(f) by a proprietor. The decision taken by the Additional Commissioner while holding that land being grazing land has vested in the State was in accordance with law. The Board of Revenues order to the contrary was perverse and illegal. 13. The question as to title in view of the provisions under the M.P. Land Revenue Code, 1959 is the domain of civil court, the Trial Court was absolutely right in decreeing the suit in favour of villagers. Such common land could not have been settled at all in favour of the erstwhile proprietor or his legal representatives. The approach of the First Appellate Court holding it to be grove was perverse and contrary to the provisions and the law laid down by this Court in Shrimant Sardar Chandrojirao Angre (supra). The First Appellate Court has failed to understand the purport of Charnoi which is a common land reserved for the public purpose and is not exclusively for grazing of cattle of Zamindar. Such village sites/common land clearly vests in the State automatically free from all encumbrances. 14. Thus, we have absolutely no hesitation to reject the submissions raised by the learned senior counsel appearing on behalf of the appellant and even the decision in Shrimant Sardar Chandrojirao Angre (supra) does not support the cause espoused that said case did not relate to Charnoi land. As such, decision is not at all applicable, even otherwise decision negates submission raised on behalf of appellants that it was grove. 15. Thus, for the aforesaid reasons, we find absolutely no ground to interfere with the impugned judgment of the High Court.
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10. In order to save the land from vesting Section 4(2) requires land to be personally cultivated by Zamindar or through employees or hired labourers and another sine qua non in that it should be so recorded in revenue papers as khud-kasht, otherwise all land vest in the State as provided in Section 4(1)(a). Once the land is recorded as Charnoi i.e., common land reserved for grazing of cattles of villagers, such common land clearly vests in the State as provided in Section 4(1) (a) all the land, the forest, trees, village-sites, pathways etc. vest in the State absolutely. Since the land was Charnoi i.e., common grazing land for cattle of the villagers having huge area 72 bighas 18 biswa the fruit-bearing trees of custard apple also vested in the State11. The provisions contained in Section 5(f) in Madhya Bharat Zamindari Abolition Act did not confer any rights on Zamindars on such common land and did not save same from vesting, once it was recorded as Charnoi for public purpose before the date of vesting in the year 1950-51 i.e., Samvat year 2007. Samvat year used to commence from 1 st July, and ended on 30 th June of next Gregorian calendar year. The provision of Section 5(f) would not come into play to confer any right on such common landIt is apparent from aforesaid observations that grove to be recognized as such should be of such trees when fully grown preclude land on which they are standing from being primarily used for a purpose other than that of grove-land. This Court further observed that trees standing on the side of the road would not fulfil the requirement of a grove even as understood in the ordinary sense. Thus, when land is primarily used for Charnoi i.e. common grazing land for cattle of villagers, it would not fall into the category of grove and provision of Section 5(f) would not save such trees from vesting. The village sites, comprise of common land reserved for villagers, vest in State. It cannot be retained by Zamindar as he had no existing right on such land even before date of vesting, it being common land, it belonged to villagers. No individual can claim that such land belongs to him exclusively. The fruit bearing trees irrespective of numbers have also vested in the State under Section 4(1)(a). No right can be claimed on trees on such common land under Section 5(f) by a proprietor. The decision taken by the Additional Commissioner while holding that land being grazing land has vested in the State was in accordance with law. The Board of Revenues order to the contrary was perverse and illegal13. The question as to title in view of the provisions under the M.P. Land Revenue Code, 1959 is the domain of civil court, the Trial Court was absolutely right in decreeing the suit in favour of villagers. Such common land could not have been settled at all in favour of the erstwhile proprietor or his legal representatives. The approach of the First Appellate Court holding it to be grove was perverse and contrary to the provisions and the law laid down by this Court in Shrimant Sardar Chandrojirao Angre (supra). The First Appellate Court has failed to understand the purport of Charnoi which is a common land reserved for the public purpose and is not exclusively for grazing of cattle of Zamindar. Such village sites/common land clearly vests in the State automatically free from all encumbrances14. Thus, we have absolutely no hesitation to reject the submissions raised by the learned senior counsel appearing on behalf of the appellant and even the decision in Shrimant Sardar Chandrojirao Angre (supra) does not support the cause espoused that said case did not relate to Charnoi land. As such, decision is not at all applicable, even otherwise decision negates submission raised on behalf of appellants that it was grove15. Thus, for the aforesaid reasons, we find absolutely no ground to interfere with the impugned judgment of the High Court.
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R.G.D'Souza Vs. Poona Employees Union | application of a Trade Union inviting the attention of the Registrar of Trade Unions or the Registrar may suo moto take cognizance under the said section. There is no mention in the said provision about cancellation of Registration of Trade Union on application by any other person. The said section permits the Authority to cancel the registration of the trade union if, it is obtained by fraud or mistake, but does not permit the Authority to cancel the certificate of registration if, the same is granted by mistake due to incorrect assessment or non-application of mind or mechanical act on the part of the Authority. 16. Even for the sake of argument, it is accepted by us that the mistake is on the part of the Trade Union and in the opinion of the Registrar of Trade Unions in exercise of his powers Under Section 10 of the Act cancels the Certification of Registration of the Trade Union, then it must be preceded by an enquiry, followed by show cause notice, disclosing grounds for initiating action so that the same can be answered by the noticee Union effectively. This was not done in the present case on hand and the same has been rightly held by the High Court. Further Rule 8(2) of the Bombay Trade Union Regulations 1927 clearly states that: "2) The Registrar on receiving an application for withdrawal or cancellation of registration shall, before granting the application, verify himself that the application was approved in general meeting of the Trade Union if it was not so approved, that it has the approval of the majority members of the Trade Union. For this purpose, the Registrar may call for such further particulars as he may deem necessary and may examine any officer of the Union." The above said rule was not fully complied with by the Registrar of Trade Unions and the Appellant has not submitted any approval granted by a general body meeting or by majority of the Trade Union for the withdrawal or cancellation of the registration of the Trade Union. The act of fraud or mistake cannot be attributed to the Trade Union since the information provided by the Trade Union for registering itself is not by fraud or mistake as mandated Under Section 10 of the Act. 17. With respect to the provisions of Sections 4, 5, and 6 of the Act & Rules, which provide for furnishing the details in the application to be submitted for registration of the Trade Union. The above said provisions of the sections clearly state that they must be complied with for the applying-Union to be entitled for registration. However, it is essential to note that the 1st proviso of Section 4; Clause (aa), (b) and (c) of Section 5 and Clause (ee) & (hh) of Section 6 were inserted to the Act only by the Amendment Act of 31 of 2001, w.e.f. 09.01.2002, whereas the Trade Union was registered in the year 1986 when part of the above said provisions were not present. Therefore, in the present case on hand, although it was necessary for the Trade Union to comply with and provide all the necessary details under the above said provisions that were relevant at the time of registration, the Registrar either by mistake or due to incorrect assessment or non-application of mind may have issued a Certificate of Registration to the Trade Union. This official act by the Registrar of Trade Unions cannot be nullified by him Under Section 10 of the Act, but can only be rectified by the appellate authority or writ court as rightly opined by the High Court in the impugned judgment. 18. In our considered view, the High Court has correctly held that the word "any" in the application form and the Rules of the Trade Union Under Section 6 of the Act can be considered as "all". The High Court has rightly held that the word "any" could mean that the object the Trade Union was to operate in all types of industries in Pune District. The necessity of specifying or disclosing the nature of industry/industries in which the Trade Union intends to operate and functions came only when the Section 2 of the amendment Act of 31 of 2001 (w.e.f. 9.1.2002) was inserted in the Trade Unions Act, 1926, whereas the Trade Union was registered in the year 1986. The requirement of workmen engaged in an establishment or industry with which it is connected to be members of the Trade Union came only after Section 4 was amended and the provisos were incorporated which came into force w.e.f. 09.01.2002, which is much after the registration of the Trade Union. The first part of the proviso mandated that a Trade Union must have at least ten percent or one hundred workmen engaged or employed in an establishment or industry who are members of such Trade Union on the date of making the application for registration. The second part of the proviso mandated that a Trade Union on the date of making application for registration must have not less than seven persons as its members who are engaged or employed in the establishment or industry with which it is connected. This requirement was not needed at the time of registration of the Trade Union as the above said amendment to the Act came after the registration of the same. From the facts and circumstances of the case on hand, the Trade Union has neither suppressed nor supplied any information by fraud or mistake in order to obtain the Certificate of Registration. Therefore, discrepancy in providing details in the prescribed Form A being a product of the above Amendment Act cannot invalidate or is not a valid ground to cancel the Certificate of Registration of the Trade Union and the decision of this Court in the case of Forbes Forbes Campbell (supra) as relied on by the learned Senior Counsel for the Appellant is not relevant in the case on hand.19. | 0[ds]. In our considered view, the High Court has correctly held that the wordin the application form and the Rules of the Trade UnionSection 6 of the Act can be considered asThe High Court has rightly held that the wordcould mean that the object the Trade Union was to operate in all types of industries in Pune District. The necessity of specifying or disclosing the nature of industry/industries in which the Trade Union intends to operate and functions came only when the Section 2 of the amendment Act of 31 of 2001 (w.e.f. 9.1.2002) was inserted in theTrade Unions Act,1926, whereas the Trade Union was registered in the year 1986. The requirement of workmen engaged in an establishment or industry with which it is connected to be members of the Trade Union came only after Section 4 was amended and the provisos were incorporated which came into force w.e.f. 09.01.2002, which is much after the registration of the Trade Union. The first part of the proviso mandated that a Trade Union must have at least ten percent or one hundred workmen engaged or employed in an establishment or industry who are members of such Trade Union on the date of making the application for registration. The second part of the proviso mandated that a Trade Union on the date of making application for registration must have not less than seven persons as its members who are engaged or employed in the establishment or industry with which it is connected. This requirement was not needed at the time of registration of the Trade Union as the above said amendment to the Act came after the registration of the same. From the facts and circumstances of the case on hand, the Trade Union has neither suppressed nor supplied any information by fraud or mistake in order to obtain the Certificate of Registration. Therefore, discrepancy in providing details in the prescribed Formbeing a product of the above Amendment Act cannot invalidate or is not a valid ground to cancel the Certificate of Registration of the Trade Union and the decision of this Court in the case of Forbes Forbes Campbell (supra) as relied on by the learnedcounsel for theis not relevant in the case on hand. | 0 | 3,483 | 397 | ### Instruction:
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application of a Trade Union inviting the attention of the Registrar of Trade Unions or the Registrar may suo moto take cognizance under the said section. There is no mention in the said provision about cancellation of Registration of Trade Union on application by any other person. The said section permits the Authority to cancel the registration of the trade union if, it is obtained by fraud or mistake, but does not permit the Authority to cancel the certificate of registration if, the same is granted by mistake due to incorrect assessment or non-application of mind or mechanical act on the part of the Authority. 16. Even for the sake of argument, it is accepted by us that the mistake is on the part of the Trade Union and in the opinion of the Registrar of Trade Unions in exercise of his powers Under Section 10 of the Act cancels the Certification of Registration of the Trade Union, then it must be preceded by an enquiry, followed by show cause notice, disclosing grounds for initiating action so that the same can be answered by the noticee Union effectively. This was not done in the present case on hand and the same has been rightly held by the High Court. Further Rule 8(2) of the Bombay Trade Union Regulations 1927 clearly states that: "2) The Registrar on receiving an application for withdrawal or cancellation of registration shall, before granting the application, verify himself that the application was approved in general meeting of the Trade Union if it was not so approved, that it has the approval of the majority members of the Trade Union. For this purpose, the Registrar may call for such further particulars as he may deem necessary and may examine any officer of the Union." The above said rule was not fully complied with by the Registrar of Trade Unions and the Appellant has not submitted any approval granted by a general body meeting or by majority of the Trade Union for the withdrawal or cancellation of the registration of the Trade Union. The act of fraud or mistake cannot be attributed to the Trade Union since the information provided by the Trade Union for registering itself is not by fraud or mistake as mandated Under Section 10 of the Act. 17. With respect to the provisions of Sections 4, 5, and 6 of the Act & Rules, which provide for furnishing the details in the application to be submitted for registration of the Trade Union. The above said provisions of the sections clearly state that they must be complied with for the applying-Union to be entitled for registration. However, it is essential to note that the 1st proviso of Section 4; Clause (aa), (b) and (c) of Section 5 and Clause (ee) & (hh) of Section 6 were inserted to the Act only by the Amendment Act of 31 of 2001, w.e.f. 09.01.2002, whereas the Trade Union was registered in the year 1986 when part of the above said provisions were not present. Therefore, in the present case on hand, although it was necessary for the Trade Union to comply with and provide all the necessary details under the above said provisions that were relevant at the time of registration, the Registrar either by mistake or due to incorrect assessment or non-application of mind may have issued a Certificate of Registration to the Trade Union. This official act by the Registrar of Trade Unions cannot be nullified by him Under Section 10 of the Act, but can only be rectified by the appellate authority or writ court as rightly opined by the High Court in the impugned judgment. 18. In our considered view, the High Court has correctly held that the word "any" in the application form and the Rules of the Trade Union Under Section 6 of the Act can be considered as "all". The High Court has rightly held that the word "any" could mean that the object the Trade Union was to operate in all types of industries in Pune District. The necessity of specifying or disclosing the nature of industry/industries in which the Trade Union intends to operate and functions came only when the Section 2 of the amendment Act of 31 of 2001 (w.e.f. 9.1.2002) was inserted in the Trade Unions Act, 1926, whereas the Trade Union was registered in the year 1986. The requirement of workmen engaged in an establishment or industry with which it is connected to be members of the Trade Union came only after Section 4 was amended and the provisos were incorporated which came into force w.e.f. 09.01.2002, which is much after the registration of the Trade Union. The first part of the proviso mandated that a Trade Union must have at least ten percent or one hundred workmen engaged or employed in an establishment or industry who are members of such Trade Union on the date of making the application for registration. The second part of the proviso mandated that a Trade Union on the date of making application for registration must have not less than seven persons as its members who are engaged or employed in the establishment or industry with which it is connected. This requirement was not needed at the time of registration of the Trade Union as the above said amendment to the Act came after the registration of the same. From the facts and circumstances of the case on hand, the Trade Union has neither suppressed nor supplied any information by fraud or mistake in order to obtain the Certificate of Registration. Therefore, discrepancy in providing details in the prescribed Form A being a product of the above Amendment Act cannot invalidate or is not a valid ground to cancel the Certificate of Registration of the Trade Union and the decision of this Court in the case of Forbes Forbes Campbell (supra) as relied on by the learned Senior Counsel for the Appellant is not relevant in the case on hand.19.
### Response:
0
### Explanation:
. In our considered view, the High Court has correctly held that the wordin the application form and the Rules of the Trade UnionSection 6 of the Act can be considered asThe High Court has rightly held that the wordcould mean that the object the Trade Union was to operate in all types of industries in Pune District. The necessity of specifying or disclosing the nature of industry/industries in which the Trade Union intends to operate and functions came only when the Section 2 of the amendment Act of 31 of 2001 (w.e.f. 9.1.2002) was inserted in theTrade Unions Act,1926, whereas the Trade Union was registered in the year 1986. The requirement of workmen engaged in an establishment or industry with which it is connected to be members of the Trade Union came only after Section 4 was amended and the provisos were incorporated which came into force w.e.f. 09.01.2002, which is much after the registration of the Trade Union. The first part of the proviso mandated that a Trade Union must have at least ten percent or one hundred workmen engaged or employed in an establishment or industry who are members of such Trade Union on the date of making the application for registration. The second part of the proviso mandated that a Trade Union on the date of making application for registration must have not less than seven persons as its members who are engaged or employed in the establishment or industry with which it is connected. This requirement was not needed at the time of registration of the Trade Union as the above said amendment to the Act came after the registration of the same. From the facts and circumstances of the case on hand, the Trade Union has neither suppressed nor supplied any information by fraud or mistake in order to obtain the Certificate of Registration. Therefore, discrepancy in providing details in the prescribed Formbeing a product of the above Amendment Act cannot invalidate or is not a valid ground to cancel the Certificate of Registration of the Trade Union and the decision of this Court in the case of Forbes Forbes Campbell (supra) as relied on by the learnedcounsel for theis not relevant in the case on hand.
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Athar Hussain Vs. Syed Siraj Ahmed & Others | case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children. 45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings. 46. The learned counsel for the appellant placed strong reliance in the case of Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words subject to the provisions of this section in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. The view expressed by the High Court is clearly correct. As far as the question of interim custody is concerned, we are of the view that there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject. 47. At this juncture, we may mention the following factors to which the learned counsel for the appellant invites our attention. In the present case, respondent no. 1 is an old person aged about 72 years and respondent no. 2 is already married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent No. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. We cannot express our views on the correctness of these averments. These are the matters that must be gone into when the Family Court disposes of the application for guardianship filed by the Respondents, and not at this stage. 48. According to the appellant, from the fact that the respondents raised the issue of death of his wife 10 months after her death and one month after he refused the marriage offer of Respondent No. 3, it must be inferred that the respondents have raised this issue merely to obtain the custody of children and that the respondents did not come to court with clean hands. As far as the question of denying the respondents the interim custody of children on the ground that they had not approached the Court with clean hands, we are constrained to say that we are not in a position to conclusively infer the same. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is again question of fact which is yet to be proved. In Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed: A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody. 49. The learned counsel for the appellant again relied on a decision of B.N.Ganguly (supra) in which case the High Court of Madhya Pradesh had held that there is a presumption in law that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. The facts of that case are quite different from the one at hand. The contesting guardians in that case where contesting on the basis of an alleged adoption, against the parents of the child. Both the parents had joined in making the application and nothing had been said against their habits or way of living. The case stands altogether on a different footing. 50. The High court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years old. In the opinion of High Court, she was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandeys case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed. | 1[ds]32. Section 12 of the Act empowers courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the Court to make any order as it deems proper43. As is evident, the aforementioned decision concerned appointment of a guardian. No doubt, unless the father is proven to be unfit, the application for guardianship filed by another person cannot be entertained. However, we have already seen that the question of custody was distinct from that of guardianship. As far as matters of custody are concerned, the Court is not bound by the bar envisaged under Section 19 of the Act. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents44. Further, the balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle. A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that respondent no.3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. The learned counsel for the appellant placed reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004 UTR 1] wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttranchal High court in that case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings | 1 | 6,928 | 777 | ### 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:
case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children. 45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings. 46. The learned counsel for the appellant placed strong reliance in the case of Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words subject to the provisions of this section in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. The view expressed by the High Court is clearly correct. As far as the question of interim custody is concerned, we are of the view that there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject. 47. At this juncture, we may mention the following factors to which the learned counsel for the appellant invites our attention. In the present case, respondent no. 1 is an old person aged about 72 years and respondent no. 2 is already married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent No. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. We cannot express our views on the correctness of these averments. These are the matters that must be gone into when the Family Court disposes of the application for guardianship filed by the Respondents, and not at this stage. 48. According to the appellant, from the fact that the respondents raised the issue of death of his wife 10 months after her death and one month after he refused the marriage offer of Respondent No. 3, it must be inferred that the respondents have raised this issue merely to obtain the custody of children and that the respondents did not come to court with clean hands. As far as the question of denying the respondents the interim custody of children on the ground that they had not approached the Court with clean hands, we are constrained to say that we are not in a position to conclusively infer the same. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is again question of fact which is yet to be proved. In Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed: A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody. 49. The learned counsel for the appellant again relied on a decision of B.N.Ganguly (supra) in which case the High Court of Madhya Pradesh had held that there is a presumption in law that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. The facts of that case are quite different from the one at hand. The contesting guardians in that case where contesting on the basis of an alleged adoption, against the parents of the child. Both the parents had joined in making the application and nothing had been said against their habits or way of living. The case stands altogether on a different footing. 50. The High court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years old. In the opinion of High Court, she was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandeys case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed.
### Response:
1
### Explanation:
32. Section 12 of the Act empowers courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the Court to make any order as it deems proper43. As is evident, the aforementioned decision concerned appointment of a guardian. No doubt, unless the father is proven to be unfit, the application for guardianship filed by another person cannot be entertained. However, we have already seen that the question of custody was distinct from that of guardianship. As far as matters of custody are concerned, the Court is not bound by the bar envisaged under Section 19 of the Act. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents44. Further, the balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle. A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that respondent no.3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. The learned counsel for the appellant placed reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004 UTR 1] wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttranchal High court in that case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings
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State of Tamil Nadu Vs. Cement Distributors Private Limited & Others | A.N. Ray, C.J.1. This appeal by certificate is on the question whether there was any contract of sale pursuant to which goods were moved from the State of Tamil Nadu to the State of West Bengal.2. The respondent Cement Distributors Private Limited are the agents of the State Trading Corporation. Under the Cement Control Order all manufacturers are required to sell Cement to State Trading Corporation. On 22 November, 1961. the Regional Cement Officer of the State Trading Corporation in Tamil Nadu authorised the respondent to sell the quantity of Cement mentioned in the authorisation note of that date to persons directed by the Regional Cement Officer, State Trading Corporation, Calcutta. The authorisation was in favour of the respondent. The factory which was to supply cement was also mentioned in the note as Dalmiapuram factory. The authorisation further said that 9,000 metric tons were allotted for the fourth period in 1961 for distribution to Calcutta area as directed by the Regional Cement Officer, State Trading Corporation, Calcutta.3. On 4-11-1961, there was another authorisation issued by the Regional Cement Officer at Calcutta. The note mentioned the respondent Cement Distributors as suppliers. The note said that the authorisation was in favour of the Executive Engineer. Howrah Division Construction Board, 94, Chittaranjan Avenue, Calcutta. The quantity allotted. was 230 metric tons. The name of the factory to supply cement was Dalmiapuram. Delivery was ex-Calcutta Jetty docks. The price was the ruling price on the date of despatch from the factory.4. On these documents it is contended on behalf of the State that Cement was shipped by the respondent to their godown at Calcutta for direct sale to the purchaser in whose favour the letter of authorisation note was issued, namely, the Executive Engineer, Howrah Division Construction Board, who was to take delivery at the jetty.5. The respondents were assessed by the State under the Central Sales Tax Act on these transactions as inter-State- sales. The respondent company contended that cement was despatched under authorisation order to Calcutta. The respondent company contended that the company did not enter into any contract for sale of cement with the buyers before or at the time of shipment. A contract was made only after an authorisation in favour of the buyer had been issued by the. Regional Cement Officer, Calcutta. Such an authorisation by Calcutta Officer was subsequent to the shipment. The respondent company contended that the transaction was not inter-State sale.6. The only question is whether the contract of sale itself with the Executive Engineer occasioned movement of goods.7. Section 3 of the Central Sales Tax Act provides that a sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase (a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. The settled view of this Court is that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale then the Sale is an inter-State Sale. (See Tata Iron and Steel Co. Ltd, v. S. R. Sarkar, (1961) 1 SCR 379 - (AIR 1961 SC 65 )).8. In the present case, the goods are despatched by the respondent to themselves at Calcutta according to the directions of the state Trading Corporation. This was for Consumption in Calcutta area as will appear from the authorisation dated 4 November, 1961. The other authorisation letter dated 22 November 1961 was issued, after the arrival of the goods, by the Regional Cement Officer, Calcutta authorising the respondent to sell cement. It is apparent that there was no movement of goods by the respondent company as a result of a contract of sale between the respondent and the buyer at Calcutta. The shipment was made by the respondent company without any reference to any buyer. The movement of goods from Madras to Calcutta did not take place as a result of any contract of sale, but in pursuance of instruction contained in authorisation for transfer of stocks from Madras to Calcutta. The transactions were not inter-state sales liable to tax under the Central Sales Tax Act. The movement of goods from one State to another without any of the element of "sale" within the meaning of the Central Act cannot be subject to tax. The shipment was movement of stocks of cement belonging to the State Trading Corporation from one place to another. There was shortage of supply of cement at Calcutta. The State Trading Corporation moved stocks from Madras to Calcutta. The area of need and the availability of Stocks of cement were known to the State Trading Corporation. The transactions could not be subjected to Central Sales Tax. | 0[ds]8. In the present case, the goods are despatched by the respondent to themselves at Calcutta according to the directions of the state Trading Corporation. This was for Consumption in Calcutta area as will appear from the authorisation dated 4 November, 1961. The other authorisation letter dated 22 November 1961 was issued, after the arrival of the goods, by the Regional Cement Officer, Calcutta authorising the respondent to sell cement. It is apparent that there was no movement of goods by the respondent company as a result of a contract of sale between the respondent and the buyer at Calcutta. The shipment was made by the respondent company without any reference to any buyer. The movement of goods from Madras to Calcutta did not take place as a result of any contract of sale, but in pursuance of instruction contained in authorisation for transfer of stocks from Madras to Calcutta. The transactions were notsales liable to tax under the Central Sales Tax Act. The movement of goods from one State to another without any of the element of "sale" within the meaning of the Central Act cannot be subject to tax. The shipment was movement of stocks of cement belonging to the State Trading Corporation from one place to another. There was shortage of supply of cement at Calcutta. The State Trading Corporation moved stocks from Madras to Calcutta. The area of need and the availability of Stocks of cement were known to the State Trading Corporation. The transactions could not be subjected to Central Sales Tax. | 0 | 889 | 284 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
A.N. Ray, C.J.1. This appeal by certificate is on the question whether there was any contract of sale pursuant to which goods were moved from the State of Tamil Nadu to the State of West Bengal.2. The respondent Cement Distributors Private Limited are the agents of the State Trading Corporation. Under the Cement Control Order all manufacturers are required to sell Cement to State Trading Corporation. On 22 November, 1961. the Regional Cement Officer of the State Trading Corporation in Tamil Nadu authorised the respondent to sell the quantity of Cement mentioned in the authorisation note of that date to persons directed by the Regional Cement Officer, State Trading Corporation, Calcutta. The authorisation was in favour of the respondent. The factory which was to supply cement was also mentioned in the note as Dalmiapuram factory. The authorisation further said that 9,000 metric tons were allotted for the fourth period in 1961 for distribution to Calcutta area as directed by the Regional Cement Officer, State Trading Corporation, Calcutta.3. On 4-11-1961, there was another authorisation issued by the Regional Cement Officer at Calcutta. The note mentioned the respondent Cement Distributors as suppliers. The note said that the authorisation was in favour of the Executive Engineer. Howrah Division Construction Board, 94, Chittaranjan Avenue, Calcutta. The quantity allotted. was 230 metric tons. The name of the factory to supply cement was Dalmiapuram. Delivery was ex-Calcutta Jetty docks. The price was the ruling price on the date of despatch from the factory.4. On these documents it is contended on behalf of the State that Cement was shipped by the respondent to their godown at Calcutta for direct sale to the purchaser in whose favour the letter of authorisation note was issued, namely, the Executive Engineer, Howrah Division Construction Board, who was to take delivery at the jetty.5. The respondents were assessed by the State under the Central Sales Tax Act on these transactions as inter-State- sales. The respondent company contended that cement was despatched under authorisation order to Calcutta. The respondent company contended that the company did not enter into any contract for sale of cement with the buyers before or at the time of shipment. A contract was made only after an authorisation in favour of the buyer had been issued by the. Regional Cement Officer, Calcutta. Such an authorisation by Calcutta Officer was subsequent to the shipment. The respondent company contended that the transaction was not inter-State sale.6. The only question is whether the contract of sale itself with the Executive Engineer occasioned movement of goods.7. Section 3 of the Central Sales Tax Act provides that a sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase (a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. The settled view of this Court is that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale then the Sale is an inter-State Sale. (See Tata Iron and Steel Co. Ltd, v. S. R. Sarkar, (1961) 1 SCR 379 - (AIR 1961 SC 65 )).8. In the present case, the goods are despatched by the respondent to themselves at Calcutta according to the directions of the state Trading Corporation. This was for Consumption in Calcutta area as will appear from the authorisation dated 4 November, 1961. The other authorisation letter dated 22 November 1961 was issued, after the arrival of the goods, by the Regional Cement Officer, Calcutta authorising the respondent to sell cement. It is apparent that there was no movement of goods by the respondent company as a result of a contract of sale between the respondent and the buyer at Calcutta. The shipment was made by the respondent company without any reference to any buyer. The movement of goods from Madras to Calcutta did not take place as a result of any contract of sale, but in pursuance of instruction contained in authorisation for transfer of stocks from Madras to Calcutta. The transactions were not inter-state sales liable to tax under the Central Sales Tax Act. The movement of goods from one State to another without any of the element of "sale" within the meaning of the Central Act cannot be subject to tax. The shipment was movement of stocks of cement belonging to the State Trading Corporation from one place to another. There was shortage of supply of cement at Calcutta. The State Trading Corporation moved stocks from Madras to Calcutta. The area of need and the availability of Stocks of cement were known to the State Trading Corporation. The transactions could not be subjected to Central Sales Tax.
### Response:
0
### Explanation:
8. In the present case, the goods are despatched by the respondent to themselves at Calcutta according to the directions of the state Trading Corporation. This was for Consumption in Calcutta area as will appear from the authorisation dated 4 November, 1961. The other authorisation letter dated 22 November 1961 was issued, after the arrival of the goods, by the Regional Cement Officer, Calcutta authorising the respondent to sell cement. It is apparent that there was no movement of goods by the respondent company as a result of a contract of sale between the respondent and the buyer at Calcutta. The shipment was made by the respondent company without any reference to any buyer. The movement of goods from Madras to Calcutta did not take place as a result of any contract of sale, but in pursuance of instruction contained in authorisation for transfer of stocks from Madras to Calcutta. The transactions were notsales liable to tax under the Central Sales Tax Act. The movement of goods from one State to another without any of the element of "sale" within the meaning of the Central Act cannot be subject to tax. The shipment was movement of stocks of cement belonging to the State Trading Corporation from one place to another. There was shortage of supply of cement at Calcutta. The State Trading Corporation moved stocks from Madras to Calcutta. The area of need and the availability of Stocks of cement were known to the State Trading Corporation. The transactions could not be subjected to Central Sales Tax.
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K.C.P. Limited Vs. State Trading Corporation of India and Another | Pradesh against the judgment and order dismissing their suit. O.S.A. No.5/74 was filed by the appellant against the decree which was passed against them in C.S. No.1/70 while O.S.A. No.9/74 was filed by the State Trading Corporation in respect of the judgment and order in C.S.No.1/70 in so far as it directed the State Trading Corp oration to pay court fee on its claims separately. The Andhra Pradesh High Court by the impugned judgment and order which is a common judgment in the three appeals, has dismissed these appeals and has awarded costs as set out in the impugment and order. The present appeals are filed by appellant from this judgment and order in so far as it upholds the claim of the State Trading Corporation against the appellant. 7. The Andhra Pradesh High Court has examined in detail the entire correspondence which was exchanged between the appellant and/or its Chairman and the Government of India as also the Government of the concerned States in connection with the setting up of the factory of the appellant and the concessional rate at which the appellant offered to supply cement for the nagarjunasagar Project. The High Court has come to the conclusion that there was no concluded contract between the parties for the supply of cement for the said project at a fixed price of Rs.47. 50. We do not see any reason to take a different view in the light of the facts and circumstances which are set out at length in the judgment of the Division Bench of the High Court of Andhra Pradesh. In view of this finding the question of the alleged agreement being drawn up in accordance with the provisions of Article 299 of the constitution of India, or its non-enforceability on that count, does not arise. The High Court has, however, held that in view of the facts and circ umstances which are set out in the judgment, the appellant had offered a rebate of Rs.7/- on the Control Price of cement in respect of the cement supplied for the Nagarjunasagar Project. It was in the light of this concessional rate offered by the appellant that licences were issued from time to time to the appellant for the Cement factory and for expansion of its capacity. The High Court has also pointed out that in fact the appellant gave a rebate of Rs.7/- on the controlled pr ice in respect of the cement supplied for the said project and it continued to give this rebate upto 1.11.1961. The appellant also wrote to the State Trading Corporation informing it that the appellant had agreed to give a rebate of Rs.7/- on the Control Price of Cement in respect of the cement which was to be supplied by it for the Nagarjunsagar Project and the State Trading Corporation accepted this arrangement. The appellant also showed this amount as rebate in the bills which were drawn by it for the supply of cement upto 1.11.1961. It was not entitled to withdraw this rebate after 1.11.1961. In fact, even after 1.11.1961 it continued to recover only the concessional price. It has not taken any steps against the State of Andhra Pradesh to recover the amount of rebate so granted by it although its bills after 1.11.1961 do not show the rebate.8. In view of the above the High Court has, in our view, rightly come to the conclusion that the State of Andhra Pradesh was entitled to the supply of cement from the appellant at control Price less a rebate of Rs.7/- during the period when the Cement Control Orders were in operation. As the State of Andhra Pradesh has in fact paid this price, that is to say, Control Price less rebate of Rs.7/-, no further relief is required to be granted as its claim to recive cement at the fixed price of Rs.47.50 per ton has been negatived. Although the appellant declined to give this rebate in its b ills after 1.11.61 it has in fact not filed any suit for the recovery of this rebate of Rs.7/- as against the State of Andhra Pradesh. In these circumstances the High Court has rightly come to the conclusion that the State of Andhra Pradesh is liable to pay for the cement supplied, control price less a rebate of Rs.7/-. The State Trading Corporation was only a canalising agency and it had agreed to pass on a rebate of Rs.7/- to the State of Andhra Pradesh in view of the agreement which was entered into between the appellant and the State of Andhra Pradesh. The High Court has rightly observed that it is difficult to see how the appellant can at all make a complaint against the State Trading Corporation for the amount of rebate which was granted by the appellant to the State of Andhra Pradesh. It has, therefore, held that the appellant was not entitled, to claim the amount of rebate from the State Trading Corporation after 1.11.1961 as was done in the statements of accounts submitted by it to the State Trading Corporation. It has, therefore, upheld the claim of the State Trading Corporation for recovery of the excess amount for which credit was thus taken by the appellant. It has held that as selling agent, the appellant was receiving the full price minus Rs.7/- per ton given as rebate. It is only that price which should have been paid to the appellant as producer. The reversal of entries in the accounts made by the appellant as selling agent of the State Trading Corporation is unwarranted and clearly illegal. The State Trading Corporation was justified in filing the suit and claiming the amount of rebate which had been wrongfully debited to their account by the appellant by making reversal entries. The High Court has, therefore, dismissed the appeal filed by the appellant being O.S.A. No.5 of 1974 with costs. We agree with the reasoning and conclusion of the Andhra Pradesh High Court for reasons set out above. | 0[ds]7. The Andhra Pradesh High Court has examined in detail the entire correspondence which was exchanged between the appellant and/or its Chairman and the Government of India as also the Government of the concerned States in connection with the setting up of the factory of the appellant and the concessional rate at which the appellant offered to supply cement for the nagarjunasagar Project. The High Court has come to the conclusion that there was no concluded contract between the parties for the supply of cement for the said project at a fixed price of Rs.47. 50. We do not see any reason to take a different view in the light of the facts and circumstances which are set out at length in the judgment of the Division Bench of the High Court of Andhra Pradesh. In view of this finding the question of the alleged agreement being drawn up in accordance with the provisions of Article 299 of the constitution of India, or itson that count, does not arise. The High Court has, however, held that in view of the facts and circ umstances which are set out in the judgment, the appellant had offered a rebate of Rs.7/on the Control Price of cement in respect of the cement supplied for the Nagarjunasagar Project. It was in the light of this concessional rate offered by the appellant that licences were issued from time to time to the appellant for the Cement factory and for expansion of its capacity. The High Court has also pointed out that in fact the appellant gave a rebate of Rs.7/on the controlled pr ice in respect of the cement supplied for the said project and it continued to give this rebate upto 1.11.1961. The appellant also wrote to the State Trading Corporation informing it that the appellant had agreed to give a rebate of Rs.7/on the Control Price of Cement in respect of the cement which was to be supplied by it for the Nagarjunsagar Project and the State Trading Corporation accepted this arrangement. The appellant also showed this amount as rebate in the bills which were drawn by it for the supply of cement upto 1.11.1961. It was not entitled to withdraw this rebate after 1.11.1961. In fact, even after 1.11.1961 it continued to recover only the concessional price. It has not taken any steps against the State of Andhra Pradesh to recover the amount of rebate so granted by it although its bills after 1.11.1961 do not show the rebate.8. In view of the above the High Court has, in our view, rightly come to the conclusion that the State of Andhra Pradesh was entitled to the supply of cement from the appellant at control Price less a rebate of Rs.7/during the period when the Cement Control Orders were in operation. As the State of Andhra Pradesh has in fact paid this price, that is to say, Control Price less rebate ofno further relief is required to be granted as its claim to recive cement at the fixed price of Rs.47.50 per ton has been negatived. Although the appellant declined to give this rebate in its b ills after 1.11.61 it has in fact not filed any suit for the recovery of this rebate of Rs.7/as against the State of Andhra Pradesh. In these circumstances the High Court has rightly come to the conclusion that the State of Andhra Pradesh is liable to pay for the cement supplied, control price less a rebate of Rs.The State Trading Corporation was only a canalising agency and it had agreed to pass on a rebate of Rs.7/to the State of Andhra Pradesh in view of the agreement which was entered into between the appellant and the State of Andhra Pradesh. The High Court has rightly observed that it is difficult to see how the appellant can at all make a complaint against the State Trading Corporation for the amount of rebate which was granted by the appellant to the State of Andhra Pradesh. It has, therefore, held that the appellant was not entitled, to claim the amount of rebate from the State Trading Corporation after 1.11.1961 as was done in the statements of accounts submitted by it to the State Trading Corporation. It has, therefore, upheld the claim of the State Trading Corporation for recovery of the excess amount for which credit was thus taken by the appellant. It has held that as selling agent, the appellant was receiving the full price minus Rs.7/per ton given as rebate. It is only that price which should have been paid to the appellant as producer. The reversal of entries in the accounts made by the appellant as selling agent of the State Trading Corporation is unwarranted and clearly illegal. The State Trading Corporation was justified in filing the suit and claiming the amount of rebate which had been wrongfully debited to their account by the appellant by making reversal entries. The High Court has, therefore, dismissed the appeal filed by the appellant being O.S.A. No.5 of 1974 with costs. We agree with the reasoning and conclusion of the Andhra Pradesh High Court for reasons set out above. | 0 | 2,630 | 910 | ### Instruction:
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Pradesh against the judgment and order dismissing their suit. O.S.A. No.5/74 was filed by the appellant against the decree which was passed against them in C.S. No.1/70 while O.S.A. No.9/74 was filed by the State Trading Corporation in respect of the judgment and order in C.S.No.1/70 in so far as it directed the State Trading Corp oration to pay court fee on its claims separately. The Andhra Pradesh High Court by the impugned judgment and order which is a common judgment in the three appeals, has dismissed these appeals and has awarded costs as set out in the impugment and order. The present appeals are filed by appellant from this judgment and order in so far as it upholds the claim of the State Trading Corporation against the appellant. 7. The Andhra Pradesh High Court has examined in detail the entire correspondence which was exchanged between the appellant and/or its Chairman and the Government of India as also the Government of the concerned States in connection with the setting up of the factory of the appellant and the concessional rate at which the appellant offered to supply cement for the nagarjunasagar Project. The High Court has come to the conclusion that there was no concluded contract between the parties for the supply of cement for the said project at a fixed price of Rs.47. 50. We do not see any reason to take a different view in the light of the facts and circumstances which are set out at length in the judgment of the Division Bench of the High Court of Andhra Pradesh. In view of this finding the question of the alleged agreement being drawn up in accordance with the provisions of Article 299 of the constitution of India, or its non-enforceability on that count, does not arise. The High Court has, however, held that in view of the facts and circ umstances which are set out in the judgment, the appellant had offered a rebate of Rs.7/- on the Control Price of cement in respect of the cement supplied for the Nagarjunasagar Project. It was in the light of this concessional rate offered by the appellant that licences were issued from time to time to the appellant for the Cement factory and for expansion of its capacity. The High Court has also pointed out that in fact the appellant gave a rebate of Rs.7/- on the controlled pr ice in respect of the cement supplied for the said project and it continued to give this rebate upto 1.11.1961. The appellant also wrote to the State Trading Corporation informing it that the appellant had agreed to give a rebate of Rs.7/- on the Control Price of Cement in respect of the cement which was to be supplied by it for the Nagarjunsagar Project and the State Trading Corporation accepted this arrangement. The appellant also showed this amount as rebate in the bills which were drawn by it for the supply of cement upto 1.11.1961. It was not entitled to withdraw this rebate after 1.11.1961. In fact, even after 1.11.1961 it continued to recover only the concessional price. It has not taken any steps against the State of Andhra Pradesh to recover the amount of rebate so granted by it although its bills after 1.11.1961 do not show the rebate.8. In view of the above the High Court has, in our view, rightly come to the conclusion that the State of Andhra Pradesh was entitled to the supply of cement from the appellant at control Price less a rebate of Rs.7/- during the period when the Cement Control Orders were in operation. As the State of Andhra Pradesh has in fact paid this price, that is to say, Control Price less rebate of Rs.7/-, no further relief is required to be granted as its claim to recive cement at the fixed price of Rs.47.50 per ton has been negatived. Although the appellant declined to give this rebate in its b ills after 1.11.61 it has in fact not filed any suit for the recovery of this rebate of Rs.7/- as against the State of Andhra Pradesh. In these circumstances the High Court has rightly come to the conclusion that the State of Andhra Pradesh is liable to pay for the cement supplied, control price less a rebate of Rs.7/-. The State Trading Corporation was only a canalising agency and it had agreed to pass on a rebate of Rs.7/- to the State of Andhra Pradesh in view of the agreement which was entered into between the appellant and the State of Andhra Pradesh. The High Court has rightly observed that it is difficult to see how the appellant can at all make a complaint against the State Trading Corporation for the amount of rebate which was granted by the appellant to the State of Andhra Pradesh. It has, therefore, held that the appellant was not entitled, to claim the amount of rebate from the State Trading Corporation after 1.11.1961 as was done in the statements of accounts submitted by it to the State Trading Corporation. It has, therefore, upheld the claim of the State Trading Corporation for recovery of the excess amount for which credit was thus taken by the appellant. It has held that as selling agent, the appellant was receiving the full price minus Rs.7/- per ton given as rebate. It is only that price which should have been paid to the appellant as producer. The reversal of entries in the accounts made by the appellant as selling agent of the State Trading Corporation is unwarranted and clearly illegal. The State Trading Corporation was justified in filing the suit and claiming the amount of rebate which had been wrongfully debited to their account by the appellant by making reversal entries. The High Court has, therefore, dismissed the appeal filed by the appellant being O.S.A. No.5 of 1974 with costs. We agree with the reasoning and conclusion of the Andhra Pradesh High Court for reasons set out above.
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7. The Andhra Pradesh High Court has examined in detail the entire correspondence which was exchanged between the appellant and/or its Chairman and the Government of India as also the Government of the concerned States in connection with the setting up of the factory of the appellant and the concessional rate at which the appellant offered to supply cement for the nagarjunasagar Project. The High Court has come to the conclusion that there was no concluded contract between the parties for the supply of cement for the said project at a fixed price of Rs.47. 50. We do not see any reason to take a different view in the light of the facts and circumstances which are set out at length in the judgment of the Division Bench of the High Court of Andhra Pradesh. In view of this finding the question of the alleged agreement being drawn up in accordance with the provisions of Article 299 of the constitution of India, or itson that count, does not arise. The High Court has, however, held that in view of the facts and circ umstances which are set out in the judgment, the appellant had offered a rebate of Rs.7/on the Control Price of cement in respect of the cement supplied for the Nagarjunasagar Project. It was in the light of this concessional rate offered by the appellant that licences were issued from time to time to the appellant for the Cement factory and for expansion of its capacity. The High Court has also pointed out that in fact the appellant gave a rebate of Rs.7/on the controlled pr ice in respect of the cement supplied for the said project and it continued to give this rebate upto 1.11.1961. The appellant also wrote to the State Trading Corporation informing it that the appellant had agreed to give a rebate of Rs.7/on the Control Price of Cement in respect of the cement which was to be supplied by it for the Nagarjunsagar Project and the State Trading Corporation accepted this arrangement. The appellant also showed this amount as rebate in the bills which were drawn by it for the supply of cement upto 1.11.1961. It was not entitled to withdraw this rebate after 1.11.1961. In fact, even after 1.11.1961 it continued to recover only the concessional price. It has not taken any steps against the State of Andhra Pradesh to recover the amount of rebate so granted by it although its bills after 1.11.1961 do not show the rebate.8. In view of the above the High Court has, in our view, rightly come to the conclusion that the State of Andhra Pradesh was entitled to the supply of cement from the appellant at control Price less a rebate of Rs.7/during the period when the Cement Control Orders were in operation. As the State of Andhra Pradesh has in fact paid this price, that is to say, Control Price less rebate ofno further relief is required to be granted as its claim to recive cement at the fixed price of Rs.47.50 per ton has been negatived. Although the appellant declined to give this rebate in its b ills after 1.11.61 it has in fact not filed any suit for the recovery of this rebate of Rs.7/as against the State of Andhra Pradesh. In these circumstances the High Court has rightly come to the conclusion that the State of Andhra Pradesh is liable to pay for the cement supplied, control price less a rebate of Rs.The State Trading Corporation was only a canalising agency and it had agreed to pass on a rebate of Rs.7/to the State of Andhra Pradesh in view of the agreement which was entered into between the appellant and the State of Andhra Pradesh. The High Court has rightly observed that it is difficult to see how the appellant can at all make a complaint against the State Trading Corporation for the amount of rebate which was granted by the appellant to the State of Andhra Pradesh. It has, therefore, held that the appellant was not entitled, to claim the amount of rebate from the State Trading Corporation after 1.11.1961 as was done in the statements of accounts submitted by it to the State Trading Corporation. It has, therefore, upheld the claim of the State Trading Corporation for recovery of the excess amount for which credit was thus taken by the appellant. It has held that as selling agent, the appellant was receiving the full price minus Rs.7/per ton given as rebate. It is only that price which should have been paid to the appellant as producer. The reversal of entries in the accounts made by the appellant as selling agent of the State Trading Corporation is unwarranted and clearly illegal. The State Trading Corporation was justified in filing the suit and claiming the amount of rebate which had been wrongfully debited to their account by the appellant by making reversal entries. The High Court has, therefore, dismissed the appeal filed by the appellant being O.S.A. No.5 of 1974 with costs. We agree with the reasoning and conclusion of the Andhra Pradesh High Court for reasons set out above.
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S.P. Jaiswal and Ors Vs. Commissioner of Income Tax | balance amount in deposits and the question for consideration was whether the income derived by the wife from the said deposits and shares had to be assessed in the hands of the assessee under Section 16(3)(1)(iii) of the Income-tax Act, 1922. This Court held that the transfers in question were direct transfers and the income realised by the wife was income indirectly received in respect of the transfer of cash directly made by the assessee, and therefore, there was a proximate connection between the income and the transfer of assets made by the assessee and as such the said income has to be included in the income of the assessee under Section 16(3)(a)(iii) of the Income-tax Act, 1922. 12. Mr. Rammurthi also relied upon the decision in the case of Commissioner of Income-tax v. Smt. Pelleti Sridevamma [1995]216ITR826(SC) , but in the said case Clause (iv) of Section 64(1) of the Income Tax Act, 1961 came up for consideration as to whether in computing the total income of an individual all income which arises directly or indirectly to a minor child can be included or not. It is in that connection this Court had explained the true meaning of the expression that the income must be proximate as observed in Prem Bhai Parekhs case, [1970]77ITR27(SC) : [1970]77ITR27(SC) . But in the case in hand we are not really concerned with Section 64(1) of the Act and the case is, therefore, of no direct assistance. 13. The assessee in course of his argument had also contended that the interest income which children derived from the amount of loan transaction in their favour have already been taxed in their hands, and therefore, the same cannot be taxed twice. Mr. Rammurthi, however, repelling the aforesaid contention had urged that under the Income-tax Act the Assessing Officer has the right to tax the right person namely the person who is liable to be taxed according to law with respect to a particular income and merely because a wrong person has been taxed with respect to a particular income the Assessing Officer is not precluded from taxing the right person with respect to that income. In this connection, he placed reliance on the observation of this Court in the case of Income-tax Officer v. Ch. Atchaiah [1996]218ITR239(SC) , wherein this Court observed as under: We are of the opinion that under the present Act, the Income-tax Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By right person, we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression wrong person is obviously used as the opposite of the expression right person. Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. 14. In view of the aforesaid decision of this Court, the assessees contention that the children of the assessee have been taxed in respect of the income accruing from the amount is of no relevance. It may be stated at this stage that Mr. Rammurthi, appearing for the Revenue fairly stated that there is no bar for a father to advance loan to his children for carrying on their business and such loan or the income arising from such loan cannot be taxed in the hands of the father but he reiterated that in the case in hand in fact no loan had been advanced and it was merely a paper device invented by the assessee to reduce the tax liability. It would be apt. at this stage to quote the observations of Lord Macmillan in the case of Chamberlain v. Inland Revenue Commissioners (1943) 25 Tax Cas. 317, 329. This legislation is designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlement. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly. 15. And this Court in the case of Tulsidas Kilachand and Ors. v. Commissioner of Income-tax, Bombay City [1961]42ITR1(SC) had held that the aforesaid observations apply to the provisions of Indian Income Tax Act and Section 16 thereof which has been enacted with the intent and for the same purpose. Chapter V of the Indian Income Tax Act, 1961 is also designed for the same purpose, and therefore, the aforesaid observations in Chamberlains case (supra) would also apply. 16. Admittedly, the transaction between the assessee and the partners of the firm constituted by his children, and the so-called return of money on 1.4.1963 in the books of accounts of the firm of children and re-transfer of the same amount in the names of the children in the books of accounts of the assessees firm is nothing but a paper device designedly made to reduce the tax burden of the assessee and by no stretch of imagination can be held to be a loan transaction by the assessee in favour of his children. This is also apparent from the inconsistent stand taken by the children in the affidavits filed in this Court. Such a paper transaction intended merely to reduce the tax liability and cannot be held to be a loan nor the High Court in the circumstances can be said to have exceeded its advisory jurisdiction in answering the question posed. | 0[ds]10. The assessee also relied upon the decision of this Court in the case of Commissioner of Income-tax, Punjab, Jammu And Kashmir, and Himachal Pradesh v. 5. Raghbir Singhwherein the question for consideration was whether the assessee who had created a trust in respect of the shares which he had obtained in the partition of the family could be taxed on the income derived from such settlement under the provisions of the first proviso to Section 16(1)(c) of the Indian Income Tax Act, 1922 and this Court came to the conclusion that the assessee not having obtained any benefit from the trust and the trust having been created to discharge an obligation that was on the assessee, the assessee could not have been taxed under Section 16(1)(c) of the Indian Income Tax Act, 1922 as the income from shares would not be deemed to be the income of the assessee. The aforesaid conclusion of this Court was on account of the terms and conditions of the trust deed and it was found that the assets and the income were unmistakably impressed with the obligations arising out of the trust deed. We fail to understand how this decision is of any assistance to the assessee in the case in hand.in the case of Commissioner of Income-tax v. Smt. Pelleti Sridevamma [1995]216ITR826(SC) ,but in the said case Clause (iv) of Section 64(1) of the Income Tax Act, 1961 came up for consideration as to whether in computing the total income of an individual all income which arises directly or indirectly to a minor child can be included or not. It is in that connection this Court had explained the true meaning of the expression that the income must be proximate as observed in Prem Bhai Parekhs case, [1970]77ITR27(SC) : [1970]77ITR27(SC) . But in the case in hand we are not really concerned with Section 64(1) of the Act and the case is, therefore, of no direct assistance.14. In view of the aforesaid decision of this Court, the assessees contention that the children of the assessee have been taxed in respect of the income accruing from the amount is of no relevance. It may be stated at this stage that Mr. Rammurthi, appearing for the Revenue fairly stated that there is no bar for a father to advance loan to his children for carrying on their business and such loan or the income arising from such loan cannot be taxed in the hands of the father but he reiterated that in the case in hand in fact no loan had been advanced and it was merely a paper device invented by the assessee to reduce the tax liability. It would be apt. at this stage to quote the observations of Lord Macmillan in the case of Chamberlain v. Inland Revenue Commissioners (1943) 25 Tax Cas. 317, 329.This legislation is designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlement. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly.15. And this Court in the case of Tulsidas Kilachand and Ors. v. Commissioner of Income-tax, Bombay City [1961]42ITR1(SC) had held that the aforesaid observations apply to the provisions of Indian Income Tax Act and Section 16 thereof which has been enacted with the intent and for the same purpose. Chapter V of the Indian Income Tax Act, 1961 is also designed for the same purpose, and therefore, the aforesaid observations in Chamberlains case (supra) would also apply.16. Admittedly, the transaction between the assessee and the partners of the firm constituted by his children, and the so-called return of money on 1.4.1963 in the books of accounts of the firm of children and re-transfer of the same amount in the names of the children in the books of accounts of the assessees firm is nothing but a paper device designedly made to reduce the tax burden of the assessee and by no stretch of imagination can be held to be a loan transaction by the assessee in favour of his children. This is also apparent from the inconsistent stand taken by the children in the affidavits filed in this Court. Such a paper transaction intended merely to reduce the tax liability and cannot be held to be a loan nor the High Court in the circumstances can be said to have exceeded its advisory jurisdiction in answering the question posed. | 0 | 3,139 | 912 | ### Instruction:
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balance amount in deposits and the question for consideration was whether the income derived by the wife from the said deposits and shares had to be assessed in the hands of the assessee under Section 16(3)(1)(iii) of the Income-tax Act, 1922. This Court held that the transfers in question were direct transfers and the income realised by the wife was income indirectly received in respect of the transfer of cash directly made by the assessee, and therefore, there was a proximate connection between the income and the transfer of assets made by the assessee and as such the said income has to be included in the income of the assessee under Section 16(3)(a)(iii) of the Income-tax Act, 1922. 12. Mr. Rammurthi also relied upon the decision in the case of Commissioner of Income-tax v. Smt. Pelleti Sridevamma [1995]216ITR826(SC) , but in the said case Clause (iv) of Section 64(1) of the Income Tax Act, 1961 came up for consideration as to whether in computing the total income of an individual all income which arises directly or indirectly to a minor child can be included or not. It is in that connection this Court had explained the true meaning of the expression that the income must be proximate as observed in Prem Bhai Parekhs case, [1970]77ITR27(SC) : [1970]77ITR27(SC) . But in the case in hand we are not really concerned with Section 64(1) of the Act and the case is, therefore, of no direct assistance. 13. The assessee in course of his argument had also contended that the interest income which children derived from the amount of loan transaction in their favour have already been taxed in their hands, and therefore, the same cannot be taxed twice. Mr. Rammurthi, however, repelling the aforesaid contention had urged that under the Income-tax Act the Assessing Officer has the right to tax the right person namely the person who is liable to be taxed according to law with respect to a particular income and merely because a wrong person has been taxed with respect to a particular income the Assessing Officer is not precluded from taxing the right person with respect to that income. In this connection, he placed reliance on the observation of this Court in the case of Income-tax Officer v. Ch. Atchaiah [1996]218ITR239(SC) , wherein this Court observed as under: We are of the opinion that under the present Act, the Income-tax Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By right person, we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression wrong person is obviously used as the opposite of the expression right person. Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. 14. In view of the aforesaid decision of this Court, the assessees contention that the children of the assessee have been taxed in respect of the income accruing from the amount is of no relevance. It may be stated at this stage that Mr. Rammurthi, appearing for the Revenue fairly stated that there is no bar for a father to advance loan to his children for carrying on their business and such loan or the income arising from such loan cannot be taxed in the hands of the father but he reiterated that in the case in hand in fact no loan had been advanced and it was merely a paper device invented by the assessee to reduce the tax liability. It would be apt. at this stage to quote the observations of Lord Macmillan in the case of Chamberlain v. Inland Revenue Commissioners (1943) 25 Tax Cas. 317, 329. This legislation is designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlement. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly. 15. And this Court in the case of Tulsidas Kilachand and Ors. v. Commissioner of Income-tax, Bombay City [1961]42ITR1(SC) had held that the aforesaid observations apply to the provisions of Indian Income Tax Act and Section 16 thereof which has been enacted with the intent and for the same purpose. Chapter V of the Indian Income Tax Act, 1961 is also designed for the same purpose, and therefore, the aforesaid observations in Chamberlains case (supra) would also apply. 16. Admittedly, the transaction between the assessee and the partners of the firm constituted by his children, and the so-called return of money on 1.4.1963 in the books of accounts of the firm of children and re-transfer of the same amount in the names of the children in the books of accounts of the assessees firm is nothing but a paper device designedly made to reduce the tax burden of the assessee and by no stretch of imagination can be held to be a loan transaction by the assessee in favour of his children. This is also apparent from the inconsistent stand taken by the children in the affidavits filed in this Court. Such a paper transaction intended merely to reduce the tax liability and cannot be held to be a loan nor the High Court in the circumstances can be said to have exceeded its advisory jurisdiction in answering the question posed.
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10. The assessee also relied upon the decision of this Court in the case of Commissioner of Income-tax, Punjab, Jammu And Kashmir, and Himachal Pradesh v. 5. Raghbir Singhwherein the question for consideration was whether the assessee who had created a trust in respect of the shares which he had obtained in the partition of the family could be taxed on the income derived from such settlement under the provisions of the first proviso to Section 16(1)(c) of the Indian Income Tax Act, 1922 and this Court came to the conclusion that the assessee not having obtained any benefit from the trust and the trust having been created to discharge an obligation that was on the assessee, the assessee could not have been taxed under Section 16(1)(c) of the Indian Income Tax Act, 1922 as the income from shares would not be deemed to be the income of the assessee. The aforesaid conclusion of this Court was on account of the terms and conditions of the trust deed and it was found that the assets and the income were unmistakably impressed with the obligations arising out of the trust deed. We fail to understand how this decision is of any assistance to the assessee in the case in hand.in the case of Commissioner of Income-tax v. Smt. Pelleti Sridevamma [1995]216ITR826(SC) ,but in the said case Clause (iv) of Section 64(1) of the Income Tax Act, 1961 came up for consideration as to whether in computing the total income of an individual all income which arises directly or indirectly to a minor child can be included or not. It is in that connection this Court had explained the true meaning of the expression that the income must be proximate as observed in Prem Bhai Parekhs case, [1970]77ITR27(SC) : [1970]77ITR27(SC) . But in the case in hand we are not really concerned with Section 64(1) of the Act and the case is, therefore, of no direct assistance.14. In view of the aforesaid decision of this Court, the assessees contention that the children of the assessee have been taxed in respect of the income accruing from the amount is of no relevance. It may be stated at this stage that Mr. Rammurthi, appearing for the Revenue fairly stated that there is no bar for a father to advance loan to his children for carrying on their business and such loan or the income arising from such loan cannot be taxed in the hands of the father but he reiterated that in the case in hand in fact no loan had been advanced and it was merely a paper device invented by the assessee to reduce the tax liability. It would be apt. at this stage to quote the observations of Lord Macmillan in the case of Chamberlain v. Inland Revenue Commissioners (1943) 25 Tax Cas. 317, 329.This legislation is designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlement. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly.15. And this Court in the case of Tulsidas Kilachand and Ors. v. Commissioner of Income-tax, Bombay City [1961]42ITR1(SC) had held that the aforesaid observations apply to the provisions of Indian Income Tax Act and Section 16 thereof which has been enacted with the intent and for the same purpose. Chapter V of the Indian Income Tax Act, 1961 is also designed for the same purpose, and therefore, the aforesaid observations in Chamberlains case (supra) would also apply.16. Admittedly, the transaction between the assessee and the partners of the firm constituted by his children, and the so-called return of money on 1.4.1963 in the books of accounts of the firm of children and re-transfer of the same amount in the names of the children in the books of accounts of the assessees firm is nothing but a paper device designedly made to reduce the tax burden of the assessee and by no stretch of imagination can be held to be a loan transaction by the assessee in favour of his children. This is also apparent from the inconsistent stand taken by the children in the affidavits filed in this Court. Such a paper transaction intended merely to reduce the tax liability and cannot be held to be a loan nor the High Court in the circumstances can be said to have exceeded its advisory jurisdiction in answering the question posed.
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Prabhakar Vs. Joint Director, Sericulture Department & Another | only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an existing dispute. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no “industrial dispute” within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.42. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.43. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the appropriate Government to consider whether it is expedient or not to make the reference. The words at any time used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers financial arrangement and to avoid dislocation of an industry.44. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a non-existing dispute. | 0[ds]7. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averred that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service, there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearlyPertinently, even the Labour Court has not accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate.It has been held in catena of judgments that while performing this administrative function, the Government would not decide the dispute between the parties which may be termed as judicial function and such judicial function is to be discharged by the Labour Court/Industrial Tribunal only.At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.19. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power under Section 10 of the Act, such a power could not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture.20. As early as in 1959, this Court in the case of Shalimar Works Ltd. v. Their Workmen ((1960) 1 SCR 150 ) pointed out that there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) of the Act. At the same time, the Court also remarked that the dispute should be referred as soon as possible after they have arisen and after conciliation proceedings have failed. In that case, reference was made after four year of dispute having arisen. In these circumstances, this Court held that relief of reinstatement should not be given to the discharged workmen in such a belated and vague reference.It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in Its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference.The aforesaid case law depicts theLaw of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.(b) The words at any time used in Section 10 would support that there is no period of limitation in making an order of reference.(c) At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.(d) Whether dispute is alive or it has becomeat the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference.If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/ Industrial Tribunal to decide the same issue coming before it.29. In this process, let us first examine as to what would constitute industrial dispute because of the simple reason that the appropriate Government has power to refer what is known as an industrial dispute and likewise the Labour Court/Industrial Tribunal has jurisdiction to decide if there is an industrial dispute. We are not going into the entire gamut of what constitutes industrial dispute within the meaning of Section 2(k) of the Act. Our focus is only on the aspect that what can be referred should be the dispute which is existing and in praesenti when the reference is sought. To put it otherwise, if it no longer remains an industrial dispute or industrial dispute does not exist at that time, there would not be any question on making reference or adjudicating the matter as it is not an industrial dispute.The term industrial dispute connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression dispute or difference as used in the definition, therefore, means a controversy fairly definite and of real substance, connected with the employment oror with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.On the basis of aforesaid discussion, we summarise the legal position as under:An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that any industrial dispute exists or is apprehended. The words industrial dispute exists are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessaryIn such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated asthen it would bedispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an existing dispute. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is noin the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.42. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.43. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the appropriate Government to consider whether it is expedient or not to make the reference. The words at any time used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers financial arrangement and to avoid dislocation of an industry.44. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a | 0 | 9,070 | 2,544 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an existing dispute. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no “industrial dispute” within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.42. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.43. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the appropriate Government to consider whether it is expedient or not to make the reference. The words at any time used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers financial arrangement and to avoid dislocation of an industry.44. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a non-existing dispute.
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industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessaryIn such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated asthen it would bedispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an existing dispute. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is noin the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.42. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.43. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the appropriate Government to consider whether it is expedient or not to make the reference. The words at any time used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers financial arrangement and to avoid dislocation of an industry.44. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a
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Sarojini Tea Co.Pvt.Ltd., Vs. Collector Of Dibrugarh | settlement, is required to be assessed. The need for assessment arises on account of the fact that surcharge is not leviable on a person holding land measuring less than 10 bighas and, therefore, before making a demand for surcharge it is necessary to determine whether a person from whom demand is made is liable under the provisions of the Surcharge Act and is not entitled to claim exemption from such levy. The fact that the persons holding land less than 10 bighas though liable to pay land revenue, are not liable to pay surcharge under the Surcharge Act, does not, in our view, alter the character and nature of the levy. Benoy Mazumdar case (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) and the cases referred to therein, have no bearing because in those cases the question whether surcharge is to be included in land revenue, was not in issue and has not been considered 20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land revenue payable under the Surcharge Act is not land revenue but a levy which is distinct from land revenue. In consonance with the law laid down by this Court in Vishwesha Thirtha Swamiar case ( 1972 (3) SCC 246 : 1972 (1) SCR 137 : 1971 AIR(SC) 2377) it must be held that the surcharge on land revenue levied under the Surcharge Act, being an enhancement of the land revenue, is part of the land revenue and has to be treated as such for the purpose of assessing compensation under Section 12 of the Ceiling Act 21. We may now examine whether the local rate payable under the Local Rates Regulation can be regarded as land revenue. In the Preamble to the Local Rates Regulation, the said Regulation has been made to provide "for the levy on land of rates to be applied to defray the expenditure incurred and to be incurred for the relief and prevention of famine and for local purposes". In Section 1 of the Regulation it is prescribed that the said Regulation shall come into force in such districts, in such parts thereof and on such dates, as the State Government may by notification in the official Gazette, from time to time, direct. Section 3 of the Regulation prescribes the rates assessable and reads as under "3. Rates Assessable. - All land shall be liable to a levy at the rate of twenty-five naye paise for every rupee of the annual value of the land in addition to the land revenue and local cesses (if any) assessed thereon." * 22. Section 4 which deals with the effect of imposition of land rates on cess now leviable provides as follows "4. Effect of imposition of land rate on cess now leviable. - When a rate is imposed on any land under this Regulation, any cess now leviable on such land for any of the purposes mentioned in Section 12 shall cease to be levied on such land; or if such cess be maintained, a corresponding diminution shall be made in such rate." * 23. Section 5 contains the following provision with regard to recovery of rates "5. Recovery of rate. - All sums due on account of a rate imposed on any land under this Regulation shall be payable by the landholder and shall be recoverable as if they were arrears of land revenue due on such land When such land is held by two or more landholders such landholders shall be jointly and severally liable for such sums." * 24. In Guruswamy and Co. v. State of Mysore ( 1967 (1) SCR 548 : 1967 AIR(SC) 1512) Hidayatullah, J., as the learned Chief Justice then was, has observed as under : (SCR p. 571 D-E) 25. In India Cement Ltd. v. State of T. N. ( 1990 (1) SCC 12 ) these observations have been quoted and it has been mentioned that though they were made in the dissenting judgment, there was no dissent on this aspect of the matter 26. From the aforesaid observations, it would appear that the expression rate is generally used in the same sense as the expression cess. Section 4 of the Local Rates Regulation also indicates that the local rate which is imposed by the Local Rates Regulation is in the nature of cess because in Section 4 it has been provided that when a rate is imposed on any land under this Regulation any cess now leviable on such land for any of the purposes mentioned in Section 12, shall cease to be levied on such land or if such cess be maintained, a corresponding diminution shall be made for such rate. Moreover, as indicated in the Preamble, the amount realised by way of local rate is to be used for incurring expenditure for the relief and prevention of famine and for local purposes. Land revenue, on the other hand, forms part of general revenue of the State and is not limited for a particular purpose. Local rate leviable under the Local Rates Regulation is, therefore, a levy which is distinct and different in nature from land revenue. Section 3 only provides a convenient mode of prescribing the rate for levy of local rate by fixing it as a proportion, namely, 25 per cent of the annual value of the land and Section 5 only provides the mode of recovery of the rate as arrear of land revenue. The said provisions do not have the effect of equating the local rate with land revenue or making it a tax in lieu of land revenue 27. The High Court has rightly held that local rate payable under the Local Regulation is an imposition which is distinct in character from land revenue and cannot be regarded as land revenue or tax in lieu of land revenue. It cannot, therefore, be taken into consideration for assessing compensation under Section 12 of the Ceiling Act | 1[ds]But taking into consideration the peculiar circumstances of the proceedings and upon consideration of the principles of natural justice and fair play, the District Judge condoned the delay in the filing of the appeal. Since there is nothing in the Ceiling Act which excluded the applicability of Section 4 to 24 of the Limitation Act, 1963, to proceedings under the Ceiling Act, the said provisions are applicable to such proceeding sin view of sub-section (2) of Section 29 of the Limitation Act, 1963 and the District Judge was competent to condone the delay in the filing of the appeal. On a consideration of the facts and circumstances of the case, the District Judge considered it proper in the interest of justice to condone the delay. In the exercise of our jurisdiction under Article 136 of the Constitution, we do not consider it appropriate to interfere with the said exercise of discretion by the District Judge. The preliminary objection raised by the learned counsel for the respondents, is, therefore, rejected16. From the aforesaid decisions, it is amply clear that the expression surcharge in the context of taxation means an additional imposition which results in enhancement of the tax and the nature of the additional imposition is the same as the tax on which it is imposed a surcharge. A surcharge on land revenue is an enhancement of the land revenue is an enhancement of the land revenue to the extent of the imposition of surcharge. The nature of such imposition is the same viz., land revenue on which it is a surcharge17. The learned Judges of the High Court have taken note of the decisions of this Court referred to above and were of the view that if they were to interpret only the expression land revenue, there would not be any difficulty. They have observed that in the instant case they were interpreting the expression full rate if annual land revenue payable for the land in Section 12(a)(1) of the Ceiling Act. According to the learned Judges, the expression full rate of land revenue has to be understood in conformity with the Assam Land Revenue Regulation where different classes of estate are often referred to in terms of revenue, for example, khiraj or full revenue paying estate and nisf-khiraj or half revenue paying estates. The learned Judges have referred to the provisions of the Assam Land Revenue Re-assessment Act, 1936 which prescribes the procedure for re-assessment and how the rates of revenue are to be fixed, as well as the Assam Assessment of Revenue Free Waste Land Grant Act, 1948 and have observed that the rate of revenue has been understood in the sense of revenue assessed on land. The learned Judges have also taken note of the provisions of the Surcharge Act and have pointed out that the Surcharge Act makes provision for assessment of surcharge in the prescribed procedure whereas in the case of land revenue, it is assessed in one settlement and continues till the succeeding settlement and continues till the succeeding settlement; and under Section 3 of the Surcharge Act a person holding land measuring less than 10 bighas, though liable to pay land revenue, is not liable to pay surcharge on his land revenue. The learned Judges have also laid to pay surcharge on his land revenue. The learned Judges have also laid emphasis on the expression in addition to the land revenue used in Section 3 of the Surcharge Act and the expression along with land revenue in Section 7 of the Surcharge Act. Taking into account the features referred to above, the learned Judges of the High Court have held that the legislature clearly distinguished land revenue and surcharge. The learned Judges also referred to the decision of a Full Bench of five Judges of the High Court in Benoy Mazumdar v. Deputy Commissioner, Cochin (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) wherein the court was dealing with the constitutional validity of Section 7(1-A) of the Assam Land (Requisition and Acquisition) Act, 1948, and had to deal with the question of compensation in terms of multiple of annual land revenue. After mentioning the various decisions that were referred to in the said decision, the learned Judges have observed that in those cases the annual land revenue was taken to mean the land revenue as assessed on land and nowhere the idea of surcharge entered into that concept18. With great respect to the learned Judges of the High Court, we are unable to subscribe to this view. We do not find any sound basis for holding that surcharge on land revenue levied under the Surcharge Act is different and distinct in character from land revenue and does not fall within the ambit of annual land revenue under Section 12 of the Ceiling Act. The use of the words "full rate of" before the words "annual land revenue payable for the land" in Section 12(a)(1)(i) of the Ceiling Act do not, in our opinion, have a bearing upon the nature of the levy, which is land revenue. The said words have reference to the quantum of the levy which would form the basis for assessment of compensation19. We do not consider that the words "in addition to the land revenue" in Section 3 and the words "along with land revenue" in Section 7 of the Surcharge Act imply that surcharge levied under the said Act is a levy which is distinct in nature from land revenue. These expressions only mean that surcharge @ 30 per cent of the land revenue leviable under Section 3 of the Surcharge Act is over and above the amount that is payable as land revenue and in that sense it is an additional charge or imposition which is payable by way of surcharge on land revenue. The fact that the said sum is to be paid and can be recovered along with the land revenue also does not alter the nature of the levy if it is otherwise found to be of the same character as land revenue. As regards the provisions for assessment of surcharge contained in the Surcharge Act for assessment, we find that while land revenue is assessed in one settlement and continues till the succeeding settlement, surcharge having been imposed during the currency of the settlement, is required to be assessed. The need for assessment arises on account of the fact that surcharge is not leviable on a person holding land measuring less than 10 bighas and, therefore, before making a demand for surcharge it is necessary to determine whether a person from whom demand is made is liable under the provisions of the Surcharge Act and is not entitled to claim exemption from such levy. The fact that the persons holding land less than 10 bighas though liable to pay land revenue, are not liable to pay surcharge under the Surcharge Act, does not, in our view, alter the character and nature of the levy. Benoy Mazumdar case (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) and the cases referred to therein, have no bearing because in those cases the question whether surcharge is to be included in land revenue, was not in issue and has not been considered20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land revenue payable under the Surcharge Act is not land revenue but a levy which is distinct from land revenue26. From the aforesaid observations, it would appear that the expression rate is generally used in the same sense as the expression cess. Section 4 of the Local Rates Regulation also indicates that the local rate which is imposed by the Local Rates Regulation is in the nature of cess because in Section 4 it has been provided that when a rate is imposed on any land under this Regulation any cess now leviable on such land for any of the purposes mentioned in Section 12, shall cease to be levied on such land or if such cess be maintained, a corresponding diminution shall be made for such rate. Moreover, as indicated in the Preamble, the amount realised by way of local rate is to be used for incurring expenditure for the relief and prevention of famine and for local purposes. Land revenue, on the other hand, forms part of general revenue of the State and is not limited for a particular purpose. Local rate leviable under the Local Rates Regulation is, therefore, a levy which is distinct and different in nature from land revenue. Section 3 only provides a convenient mode of prescribing the rate for levy of local rate by fixing it as a proportion, namely, 25 per cent of the annual value of the land and Section 5 only provides the mode of recovery of the rate as arrear of land revenue. The said provisions do not have the effect of equating the local rate with land revenue or making it a tax in lieu of land revenue27. The High Court has rightly held that local rate payable under the Local Regulation is an imposition which is distinct in character from land revenue and cannot be regarded as land revenue or tax in lieu of land revenue. It cannot, therefore, be taken into consideration for assessing compensation under Section 12 of the Ceiling Act | 1 | 5,396 | 1,706 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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settlement, is required to be assessed. The need for assessment arises on account of the fact that surcharge is not leviable on a person holding land measuring less than 10 bighas and, therefore, before making a demand for surcharge it is necessary to determine whether a person from whom demand is made is liable under the provisions of the Surcharge Act and is not entitled to claim exemption from such levy. The fact that the persons holding land less than 10 bighas though liable to pay land revenue, are not liable to pay surcharge under the Surcharge Act, does not, in our view, alter the character and nature of the levy. Benoy Mazumdar case (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) and the cases referred to therein, have no bearing because in those cases the question whether surcharge is to be included in land revenue, was not in issue and has not been considered 20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land revenue payable under the Surcharge Act is not land revenue but a levy which is distinct from land revenue. In consonance with the law laid down by this Court in Vishwesha Thirtha Swamiar case ( 1972 (3) SCC 246 : 1972 (1) SCR 137 : 1971 AIR(SC) 2377) it must be held that the surcharge on land revenue levied under the Surcharge Act, being an enhancement of the land revenue, is part of the land revenue and has to be treated as such for the purpose of assessing compensation under Section 12 of the Ceiling Act 21. We may now examine whether the local rate payable under the Local Rates Regulation can be regarded as land revenue. In the Preamble to the Local Rates Regulation, the said Regulation has been made to provide "for the levy on land of rates to be applied to defray the expenditure incurred and to be incurred for the relief and prevention of famine and for local purposes". In Section 1 of the Regulation it is prescribed that the said Regulation shall come into force in such districts, in such parts thereof and on such dates, as the State Government may by notification in the official Gazette, from time to time, direct. Section 3 of the Regulation prescribes the rates assessable and reads as under "3. Rates Assessable. - All land shall be liable to a levy at the rate of twenty-five naye paise for every rupee of the annual value of the land in addition to the land revenue and local cesses (if any) assessed thereon." * 22. Section 4 which deals with the effect of imposition of land rates on cess now leviable provides as follows "4. Effect of imposition of land rate on cess now leviable. - When a rate is imposed on any land under this Regulation, any cess now leviable on such land for any of the purposes mentioned in Section 12 shall cease to be levied on such land; or if such cess be maintained, a corresponding diminution shall be made in such rate." * 23. Section 5 contains the following provision with regard to recovery of rates "5. Recovery of rate. - All sums due on account of a rate imposed on any land under this Regulation shall be payable by the landholder and shall be recoverable as if they were arrears of land revenue due on such land When such land is held by two or more landholders such landholders shall be jointly and severally liable for such sums." * 24. In Guruswamy and Co. v. State of Mysore ( 1967 (1) SCR 548 : 1967 AIR(SC) 1512) Hidayatullah, J., as the learned Chief Justice then was, has observed as under : (SCR p. 571 D-E) 25. In India Cement Ltd. v. State of T. N. ( 1990 (1) SCC 12 ) these observations have been quoted and it has been mentioned that though they were made in the dissenting judgment, there was no dissent on this aspect of the matter 26. From the aforesaid observations, it would appear that the expression rate is generally used in the same sense as the expression cess. Section 4 of the Local Rates Regulation also indicates that the local rate which is imposed by the Local Rates Regulation is in the nature of cess because in Section 4 it has been provided that when a rate is imposed on any land under this Regulation any cess now leviable on such land for any of the purposes mentioned in Section 12, shall cease to be levied on such land or if such cess be maintained, a corresponding diminution shall be made for such rate. Moreover, as indicated in the Preamble, the amount realised by way of local rate is to be used for incurring expenditure for the relief and prevention of famine and for local purposes. Land revenue, on the other hand, forms part of general revenue of the State and is not limited for a particular purpose. Local rate leviable under the Local Rates Regulation is, therefore, a levy which is distinct and different in nature from land revenue. Section 3 only provides a convenient mode of prescribing the rate for levy of local rate by fixing it as a proportion, namely, 25 per cent of the annual value of the land and Section 5 only provides the mode of recovery of the rate as arrear of land revenue. The said provisions do not have the effect of equating the local rate with land revenue or making it a tax in lieu of land revenue 27. The High Court has rightly held that local rate payable under the Local Regulation is an imposition which is distinct in character from land revenue and cannot be regarded as land revenue or tax in lieu of land revenue. It cannot, therefore, be taken into consideration for assessing compensation under Section 12 of the Ceiling Act
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the land revenue used in Section 3 of the Surcharge Act and the expression along with land revenue in Section 7 of the Surcharge Act. Taking into account the features referred to above, the learned Judges of the High Court have held that the legislature clearly distinguished land revenue and surcharge. The learned Judges also referred to the decision of a Full Bench of five Judges of the High Court in Benoy Mazumdar v. Deputy Commissioner, Cochin (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) wherein the court was dealing with the constitutional validity of Section 7(1-A) of the Assam Land (Requisition and Acquisition) Act, 1948, and had to deal with the question of compensation in terms of multiple of annual land revenue. After mentioning the various decisions that were referred to in the said decision, the learned Judges have observed that in those cases the annual land revenue was taken to mean the land revenue as assessed on land and nowhere the idea of surcharge entered into that concept18. With great respect to the learned Judges of the High Court, we are unable to subscribe to this view. We do not find any sound basis for holding that surcharge on land revenue levied under the Surcharge Act is different and distinct in character from land revenue and does not fall within the ambit of annual land revenue under Section 12 of the Ceiling Act. The use of the words "full rate of" before the words "annual land revenue payable for the land" in Section 12(a)(1)(i) of the Ceiling Act do not, in our opinion, have a bearing upon the nature of the levy, which is land revenue. The said words have reference to the quantum of the levy which would form the basis for assessment of compensation19. We do not consider that the words "in addition to the land revenue" in Section 3 and the words "along with land revenue" in Section 7 of the Surcharge Act imply that surcharge levied under the said Act is a levy which is distinct in nature from land revenue. These expressions only mean that surcharge @ 30 per cent of the land revenue leviable under Section 3 of the Surcharge Act is over and above the amount that is payable as land revenue and in that sense it is an additional charge or imposition which is payable by way of surcharge on land revenue. The fact that the said sum is to be paid and can be recovered along with the land revenue also does not alter the nature of the levy if it is otherwise found to be of the same character as land revenue. As regards the provisions for assessment of surcharge contained in the Surcharge Act for assessment, we find that while land revenue is assessed in one settlement and continues till the succeeding settlement, surcharge having been imposed during the currency of the settlement, is required to be assessed. The need for assessment arises on account of the fact that surcharge is not leviable on a person holding land measuring less than 10 bighas and, therefore, before making a demand for surcharge it is necessary to determine whether a person from whom demand is made is liable under the provisions of the Surcharge Act and is not entitled to claim exemption from such levy. The fact that the persons holding land less than 10 bighas though liable to pay land revenue, are not liable to pay surcharge under the Surcharge Act, does not, in our view, alter the character and nature of the levy. Benoy Mazumdar case (Civil Rule No. 28 of 1977, decided on Sept. 28, 1981) and the cases referred to therein, have no bearing because in those cases the question whether surcharge is to be included in land revenue, was not in issue and has not been considered20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land revenue payable under the Surcharge Act is not land revenue but a levy which is distinct from land revenue26. From the aforesaid observations, it would appear that the expression rate is generally used in the same sense as the expression cess. Section 4 of the Local Rates Regulation also indicates that the local rate which is imposed by the Local Rates Regulation is in the nature of cess because in Section 4 it has been provided that when a rate is imposed on any land under this Regulation any cess now leviable on such land for any of the purposes mentioned in Section 12, shall cease to be levied on such land or if such cess be maintained, a corresponding diminution shall be made for such rate. Moreover, as indicated in the Preamble, the amount realised by way of local rate is to be used for incurring expenditure for the relief and prevention of famine and for local purposes. Land revenue, on the other hand, forms part of general revenue of the State and is not limited for a particular purpose. Local rate leviable under the Local Rates Regulation is, therefore, a levy which is distinct and different in nature from land revenue. Section 3 only provides a convenient mode of prescribing the rate for levy of local rate by fixing it as a proportion, namely, 25 per cent of the annual value of the land and Section 5 only provides the mode of recovery of the rate as arrear of land revenue. The said provisions do not have the effect of equating the local rate with land revenue or making it a tax in lieu of land revenue27. The High Court has rightly held that local rate payable under the Local Regulation is an imposition which is distinct in character from land revenue and cannot be regarded as land revenue or tax in lieu of land revenue. It cannot, therefore, be taken into consideration for assessing compensation under Section 12 of the Ceiling Act
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Asbestos Cement Ltd Vs. P.D. Sawarkar & Ors | award imposed a burden of about Rs. 40 lacs by way of arrears, the award having been made retrospective in operation, and Rs. 5 58 lacs as and by way of recurring liability every year. 4. Aggrieved by the said award the appellant-company filed a writ petition under Article 226 of the Constitution being Special Civil Application No. 824 of 1965 in the High Court of Bombay for quashing the said award on diverse grounds. The writ petition came up for hearing before a Division Bench and was dismissed on merits by an order dated April 10, 1968. The appellant-company thereupon filed an application being Supreme Court Civil Application No. 2687 of 1968 for leave to appeal to this Court. That application was rejected by an order dated November 25, 1968 which stated:"No application lies under Article 226 of the Constitution as there is further arbitration." It appears that the words "Article 226" were mentioned in the said order through inadvertence. What was meant was that as the arbitration proceedings were still pending and the board of arbitrators had Yet to adjudicate on the rest of the reference, the disputes between the parties could not be said to have been finally disposed of, and that therefore, the said Part I award was an interlocutory order. Consequently, neither that award nor the order dismissing the writ petition against that award was a final order within the meaning of Article 133 (1). This appeal challenges the correctness of this order. 5. The only question arising in this appeal is whether the High Courts order dated November 23, l968 dismissing the writ petition is a final order within the meaning of Article 133 (1). There is no dispute that the question of dearness allowance along with several other questions was by agreement between the parties, referred to the arbitration of respondents 1 to 3 as provided by Section 10-A of the Act and that a copy thereof was published in the Government Gazette as required by sub-section (3) of that section. There is similarly no dispute that the arbitrators, instead of determining all the disputes at one time, first took up the question of dearness allowance, deciding to take up the rest of the disputes at a subsequent stage and gave their award calling it Part I Award. Under sub-section (4) of Section 10-A, the arbitrators submitted the said Part I Award duly signed by all of them to the Government. As required by Section 17 (1), the said Part I Award was published in the manner prescribed therefor by the State Government and thereupon under Section 17 (2) it became final and could not be called in question by any Court in any manner whatsoever. Under Section 17-A (l), the award became enforceable on the expiry of 30 days from the date of its publication under Section 17 - in the present case, as from May 15, 1965.Therefore, so far as the question of dearness allowance, among other disputes, was concerned, Part I Award became final and binding on the parties and nothing further remained to be done or determined in respect of the controversy between the parties on the question of dearness allowance. The award, therefore, was not an interlocutory order in the sense of any dispute in respect of its subject-matter remaining to be finally adjudicated by the arbitrators or the rights of the parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to dearness allowance was concerned, the arbitrators by the said Part I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration. 6. Quite apart from this consideration, the petition filed by the appellant-company for a writ of certiorari and for quashing the said Part I Award under Article 226 was- a proceeding independent of the dispute between the parties. Such a writ proceeding was not an interlocutory proceeding nor was the order dismissing it an interlocutory order leaving any question raised in the writ petition to be determined at any later stage. Once the High Court dismissed the writ petition, the controversy between the parties raised therein was finally determined and therefore came to an end. In Ramesh v. Gendalal (1966) 3 SCR 198 = (AIR 1966 SC 1445 ) a similar question arose for consideration and this Court held that a writ petition under Article 226 is a civil proceeding of a High Court that such a proceeding is quite independent of the original controversy between the parties and that a decision in exercise of jurisdiction under that article, whether interfering with the proceedings impugned or declining to do so, is a final decision in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be regarded as final for the purpose of an appeal to the Supreme Court. (see also Mohanlal Maganlal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 ). 7. It is clear that the effect of the dismissal of the writ petition by the High Court was that the said Part I Award, subject to any appeal to this Court, was not liable to be questioned on the grounds alleged in that writ petition and the appellant-company would be bound to pay to its workmen dearness allowance at the rates provided in that award. The controversy between the parties on questions raised in the writ petition was finally determined and brought to an end as a result of the order of dismissal. In view of the decision in Ramesh v. Gendalal, the High Court must be said to be in error in holding that its order dismissing the writ petition was not a final order within the meaning of Article 133 (1) and that no appeal therefore, lay therefrom to this Court. | 1[ds]6. Quite apart from this consideration, the petition filed by the appellant-company for a writ of certiorari and for quashing the said Part I Award under Article 226 was- a proceeding independent of the dispute between the parties. Such a writ proceeding was not an interlocutory proceeding nor was the order dismissing it an interlocutory order leaving any question raised in the writ petition to be determined at any later stage. Once the High Court dismissed the writ petition, the controversy between the parties raised therein was finally determined and therefore came to an end. In Ramesh v. Gendalal (1966) 3 SCR 198 = (AIR 1966 SC 1445 ) a similar question arose for consideration and this Court held that a writ petition under Article 226 is a civil proceeding of a High Court that such a proceeding is quite independent of the original controversy between the parties and that a decision in exercise of jurisdiction under that article, whether interfering with the proceedings impugned or declining to do so, is a final decision in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be regarded as final for the purpose of an appeal to the Supreme Court. (see also Mohanlal Maganlal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 )7. It is clear that the effect of the dismissal of the writ petition by the High Court was that the said Part I Award, subject to any appeal to this Court, was not liable to be questioned on the grounds alleged in that writ petition and the appellant-company would be bound to pay to its workmen dearness allowance at the rates provided in that award. The controversy between the parties on questions raised in the writ petition was finally determined and brought to an end as a result of the order of dismissal. In view of the decision in Ramesh v. Gendalal, the High Court must be said to be in error in holding that its order dismissing the writ petition was not a final order within the meaning of Article 133 (1) and that no appeal therefore, lay therefrom to this Court1. This appeal, by special leave, raises the question as to whether an order dismissing a writ petition challenging the validity of an industrial award, which disposes of one of the items of a charter of demands by workmen but leaves the rest of the demands to be adjudicated by a subsequent award, is a final order in a civil proceeding of a High Court within the meaning of Article 133 (l) of the Constitution2. The following are the relevant facts:y conducts factories at Mulund in Greater Bombay, Kymore, Calcutta and Podanur. The present dispute relates to the factory at Mulund where the company employs more than 1700 workmen and has its Head Office also3. On September 21, 1962 the 4th respondent union on behalf of the workmen of the Mulund factory submitted a charter of demands consisting of 20 items including the demand for increased dearness allowance. By an agreement dated November 26, 1964 between they and the 4th respondent union made under SectionA of theIndustrial Disputes Act, 1947, the said demands were referred for adjudication to a board of arbitrators consisting of respondents 1 to 3. A notification dated December 5, 1964 referring the said disputes to respondents 1 to 3 was issued by the Maharashtra Government and published in the Government Gazette. Demand No.A in the said charter of demands related to dearness allowance to be paid to both monthly and daily rated workmen at the rates therein set out. The arbitrators decided to hear and dispose of, first the dispute as to dearness allowance and then to deal with the rest of the disputes relating to other demands. Accordingly, the parties were heard and ultimately the arbitrators gave their award which they called Part I Award dated March, 27, 1965. The said award was a majority decision in the sense that one of the arbitrators dissented from the opinion of the other two. So far as the present appeal is concerned, it is not necessary to set out the contents of the award. The said Part I award was thereafter published in the Government Gazette dated April 15, 1965 and became enforceable under SectionA of theAct on the expiry of 30 days from the date of its publication. If they were to be right, the said award imposed a burden of about Rs. 40 lacs by way of arrears, the award having been made retrospective in operation, and Rs. 5 58 lacs as and by way of recurring liability every year4. Aggrieved by the said award they filed a writ petition under Article 226 of the Constitution being Special Civil Application No. 824 of 1965 in the High Court of Bombay for quashing the said award on diverse grounds. The writ petition came up for hearing before a Division Bench and was dismissed on merits by an order dated April 10, 1968. They thereupon filed an application being Supreme Court Civil Application No. 2687 of 1968 for leave to appeal to this Court. That application was rejected by an order dated November 25, 1968 which stated:"No application lies under Article 226 of the Constitution as there is further arbitration."It appears that the words "Article 226" were mentioned in the said order through inadvertence. What was meant was that as the arbitration proceedings were still pending and the board of arbitrators had Yet to adjudicate on the rest of the reference, the disputes between the parties could not be said to have been finally disposed of, and that therefore, the said Part I award was an interlocutory order. Consequently, neither that award nor the order dismissing the writ petition against that award was a final order within the meaning of Article 133 (1). This appeal challenges the correctness of this order5. The only question arising in this appeal is whether the High Courts order dated November 23, l968 dismissing the writ petition is a final order within the meaning of Article 133(1).There is no dispute that the question of dearness allowance along with several other questions was by agreement between the parties, referred to the arbitration of respondents 1 to 3 as provided by SectionA of theAct and that a copy thereof was published in the Government Gazette as required byn (3) of that section. There is similarly no dispute that the arbitrators, instead of determining all the disputes at one time, first took up the question of dearness allowance, deciding to take up the rest of the disputes at a subsequent stage and gave their award calling it Part I Award. Undern (4) of Section, the arbitrators submitted the said Part I Award duly signed by all of them to the Government. As required by Section 17 (1), the said Part I Award was published in the manner prescribed therefor by the State Government and thereupon under Section 17 (2) it became final and could not be called in question by any Court in any manner whatsoever. Under SectionA (l), the award became enforceable on the expiry of 30 days from the date of its publication under Section 17in the present case, as from May 15, 1965.Therefore, so far as the question of dearness allowance, among other disputes, was concerned, Part I Award became final and binding on the parties and nothing further remained to be done or determined in respect of the controversy between the parties on the question of dearness allowance. The award, therefore, was not an interlocutory order in the sense of any dispute in respect of itsr remaining to be finally adjudicated by the arbitrators or the rights of the parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to dearness allowance was concerned, the arbitrators by the said Part I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration6. Quite apart from this consideration, the petition filed by they for a writ of certiorari and for quashing the said Part I Award under Article 226 wasa proceeding independent of the dispute between the parties. Such a writ proceeding was not an interlocutory proceeding nor was the order dismissing it an interlocutory order leaving any question raised in the writ petition to be determined at any later stage. Once the High Court dismissed the writ petition, the controversy between the parties raised therein was finally determined and therefore came to an end. In Ramesh v. Gendalal (1966) 3 SCR 198 = (AIR 1966 SC 1445 ) a similar question arose for consideration and this Court held that a writ petition under Article 226 is a civil proceeding of a High Court that such a proceeding is quite independent of the original controversy between the parties and that a decision in exercise of jurisdiction under that article, whether interfering with the proceedings impugned or declining to do so, is a final decision in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be regarded as final for the purpose of an appeal to the Supreme Court. (see also Mohanlal Maganlal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 )7. It is clear that the effect of the dismissal of the writ petition by the High Court was that the said Part I Award, subject to any appeal to this Court, was not liable to be questioned on the grounds alleged in that writ petition and they would be bound to pay to its workmen dearness allowance at the rates provided in that award. The controversy between the parties on questions raised in the writ petition was finally determined and brought to an end as a result of the order of dismissal. In view of the decision in Ramesh v. Gendalal, the High Court must be said to be in error in holding that its order dismissing the writ petition was not a final order within the meaning of Article 133 (1) and that no appeal therefore, lay therefrom to this | 1 | 1,529 | 1,895 | ### Instruction:
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award imposed a burden of about Rs. 40 lacs by way of arrears, the award having been made retrospective in operation, and Rs. 5 58 lacs as and by way of recurring liability every year. 4. Aggrieved by the said award the appellant-company filed a writ petition under Article 226 of the Constitution being Special Civil Application No. 824 of 1965 in the High Court of Bombay for quashing the said award on diverse grounds. The writ petition came up for hearing before a Division Bench and was dismissed on merits by an order dated April 10, 1968. The appellant-company thereupon filed an application being Supreme Court Civil Application No. 2687 of 1968 for leave to appeal to this Court. That application was rejected by an order dated November 25, 1968 which stated:"No application lies under Article 226 of the Constitution as there is further arbitration." It appears that the words "Article 226" were mentioned in the said order through inadvertence. What was meant was that as the arbitration proceedings were still pending and the board of arbitrators had Yet to adjudicate on the rest of the reference, the disputes between the parties could not be said to have been finally disposed of, and that therefore, the said Part I award was an interlocutory order. Consequently, neither that award nor the order dismissing the writ petition against that award was a final order within the meaning of Article 133 (1). This appeal challenges the correctness of this order. 5. The only question arising in this appeal is whether the High Courts order dated November 23, l968 dismissing the writ petition is a final order within the meaning of Article 133 (1). There is no dispute that the question of dearness allowance along with several other questions was by agreement between the parties, referred to the arbitration of respondents 1 to 3 as provided by Section 10-A of the Act and that a copy thereof was published in the Government Gazette as required by sub-section (3) of that section. There is similarly no dispute that the arbitrators, instead of determining all the disputes at one time, first took up the question of dearness allowance, deciding to take up the rest of the disputes at a subsequent stage and gave their award calling it Part I Award. Under sub-section (4) of Section 10-A, the arbitrators submitted the said Part I Award duly signed by all of them to the Government. As required by Section 17 (1), the said Part I Award was published in the manner prescribed therefor by the State Government and thereupon under Section 17 (2) it became final and could not be called in question by any Court in any manner whatsoever. Under Section 17-A (l), the award became enforceable on the expiry of 30 days from the date of its publication under Section 17 - in the present case, as from May 15, 1965.Therefore, so far as the question of dearness allowance, among other disputes, was concerned, Part I Award became final and binding on the parties and nothing further remained to be done or determined in respect of the controversy between the parties on the question of dearness allowance. The award, therefore, was not an interlocutory order in the sense of any dispute in respect of its subject-matter remaining to be finally adjudicated by the arbitrators or the rights of the parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to dearness allowance was concerned, the arbitrators by the said Part I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration. 6. Quite apart from this consideration, the petition filed by the appellant-company for a writ of certiorari and for quashing the said Part I Award under Article 226 was- a proceeding independent of the dispute between the parties. Such a writ proceeding was not an interlocutory proceeding nor was the order dismissing it an interlocutory order leaving any question raised in the writ petition to be determined at any later stage. Once the High Court dismissed the writ petition, the controversy between the parties raised therein was finally determined and therefore came to an end. In Ramesh v. Gendalal (1966) 3 SCR 198 = (AIR 1966 SC 1445 ) a similar question arose for consideration and this Court held that a writ petition under Article 226 is a civil proceeding of a High Court that such a proceeding is quite independent of the original controversy between the parties and that a decision in exercise of jurisdiction under that article, whether interfering with the proceedings impugned or declining to do so, is a final decision in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be regarded as final for the purpose of an appeal to the Supreme Court. (see also Mohanlal Maganlal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 ). 7. It is clear that the effect of the dismissal of the writ petition by the High Court was that the said Part I Award, subject to any appeal to this Court, was not liable to be questioned on the grounds alleged in that writ petition and the appellant-company would be bound to pay to its workmen dearness allowance at the rates provided in that award. The controversy between the parties on questions raised in the writ petition was finally determined and brought to an end as a result of the order of dismissal. In view of the decision in Ramesh v. Gendalal, the High Court must be said to be in error in holding that its order dismissing the writ petition was not a final order within the meaning of Article 133 (1) and that no appeal therefore, lay therefrom to this Court.
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theAct on the expiry of 30 days from the date of its publication. If they were to be right, the said award imposed a burden of about Rs. 40 lacs by way of arrears, the award having been made retrospective in operation, and Rs. 5 58 lacs as and by way of recurring liability every year4. Aggrieved by the said award they filed a writ petition under Article 226 of the Constitution being Special Civil Application No. 824 of 1965 in the High Court of Bombay for quashing the said award on diverse grounds. The writ petition came up for hearing before a Division Bench and was dismissed on merits by an order dated April 10, 1968. They thereupon filed an application being Supreme Court Civil Application No. 2687 of 1968 for leave to appeal to this Court. That application was rejected by an order dated November 25, 1968 which stated:"No application lies under Article 226 of the Constitution as there is further arbitration."It appears that the words "Article 226" were mentioned in the said order through inadvertence. What was meant was that as the arbitration proceedings were still pending and the board of arbitrators had Yet to adjudicate on the rest of the reference, the disputes between the parties could not be said to have been finally disposed of, and that therefore, the said Part I award was an interlocutory order. Consequently, neither that award nor the order dismissing the writ petition against that award was a final order within the meaning of Article 133 (1). This appeal challenges the correctness of this order5. The only question arising in this appeal is whether the High Courts order dated November 23, l968 dismissing the writ petition is a final order within the meaning of Article 133(1).There is no dispute that the question of dearness allowance along with several other questions was by agreement between the parties, referred to the arbitration of respondents 1 to 3 as provided by SectionA of theAct and that a copy thereof was published in the Government Gazette as required byn (3) of that section. There is similarly no dispute that the arbitrators, instead of determining all the disputes at one time, first took up the question of dearness allowance, deciding to take up the rest of the disputes at a subsequent stage and gave their award calling it Part I Award. Undern (4) of Section, the arbitrators submitted the said Part I Award duly signed by all of them to the Government. As required by Section 17 (1), the said Part I Award was published in the manner prescribed therefor by the State Government and thereupon under Section 17 (2) it became final and could not be called in question by any Court in any manner whatsoever. Under SectionA (l), the award became enforceable on the expiry of 30 days from the date of its publication under Section 17in the present case, as from May 15, 1965.Therefore, so far as the question of dearness allowance, among other disputes, was concerned, Part I Award became final and binding on the parties and nothing further remained to be done or determined in respect of the controversy between the parties on the question of dearness allowance. The award, therefore, was not an interlocutory order in the sense of any dispute in respect of itsr remaining to be finally adjudicated by the arbitrators or the rights of the parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to dearness allowance was concerned, the arbitrators by the said Part I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration6. Quite apart from this consideration, the petition filed by they for a writ of certiorari and for quashing the said Part I Award under Article 226 wasa proceeding independent of the dispute between the parties. Such a writ proceeding was not an interlocutory proceeding nor was the order dismissing it an interlocutory order leaving any question raised in the writ petition to be determined at any later stage. Once the High Court dismissed the writ petition, the controversy between the parties raised therein was finally determined and therefore came to an end. In Ramesh v. Gendalal (1966) 3 SCR 198 = (AIR 1966 SC 1445 ) a similar question arose for consideration and this Court held that a writ petition under Article 226 is a civil proceeding of a High Court that such a proceeding is quite independent of the original controversy between the parties and that a decision in exercise of jurisdiction under that article, whether interfering with the proceedings impugned or declining to do so, is a final decision in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be regarded as final for the purpose of an appeal to the Supreme Court. (see also Mohanlal Maganlal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 )7. It is clear that the effect of the dismissal of the writ petition by the High Court was that the said Part I Award, subject to any appeal to this Court, was not liable to be questioned on the grounds alleged in that writ petition and they would be bound to pay to its workmen dearness allowance at the rates provided in that award. The controversy between the parties on questions raised in the writ petition was finally determined and brought to an end as a result of the order of dismissal. In view of the decision in Ramesh v. Gendalal, the High Court must be said to be in error in holding that its order dismissing the writ petition was not a final order within the meaning of Article 133 (1) and that no appeal therefore, lay therefrom to this
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Commissioner of Income Tax-I Vs. M/s. Reliance Energy Ltd. (Formerly BSES Ltd.) through its M.D | other contention of the Revenue is that sub-section (5) of Section 80-IA refers to computation of quantum of deduction being limited from eligible business by taking it as the only source of income. It is contended that the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from eligible business which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the business income. On the other hand, it is the case of the Assessee that sub-section (5) pertains only to determination of the quantum of deduction under sub-section (1) by treating the eligible business as the only source of income. It was submitted by Mr. Vohra, learned Senior Counsel, that the final computation of deduction under Section 80-IA for the assessment year 2002-03 as accepted by the Assessing Officer, was arrived at by taking into account the profits from the eligible business as the only source of income. He submitted that, however, sub-section (5) is a step antecedent to the treatment to be given to the deduction under sub- section (1) and is not concerned with the extent to which the computed deduction be allowed. To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA. The question that arises further with reference to allowing the deduction so computed to arrive at the total income of the Assessee cannot be determined by resorting to interpretation of sub- section (5). 14. It will be useful to refer to the judgment of this Court relied upon by the Revenue as well as the Assessee. In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows: 80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. 15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income. An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section. It is not necessary for us to deal with this submission in view of the findings recorded above. | 0[ds]The claim of the Assessee that deduction under Section 80-IA should be allowed to the extent of gross total income was rejected by the Assessing Officer.As stated above, Section 80AB was inserted in the year 1981 to get over a judgment of this Court in Cloth Traders (P) Ltd. (supra). The Circular dated 22.09.1980 issued by the CBDT makes it clear that the reason for introduction of Section 80AB of the Act was for the deductions under Part C of Chapter VI-A of the Act to be made on the net income of the eligible business and not on the total profits from the eligible business. A plain reading of Section 80AB of the Act shows that the provision pertains to determination of the quantum of deductible income in the gross total income. Section 80AB cannot be read to be curtailing the width of Section 80-IA. It is relevant to take note of Section 80A(1) which stipulates that in computation of the total income of an assessee, deductions specified in Section 80C to Section 80U of the Act shall be allowed from his gross total income. Sub-section (2) of Section 80A of the Act provides that the aggregate amount of the deductions under Chapter VI-A shall not exceed the gross total income of the Assessee. We are in agreement with the Appellate Authority that Section 80AB of the Act which deals with determination of deductions under Part C of Chapter VI-A is with respect only to computation of deduction on the basis of net income.11. The essential ingredients of Section 80-IA (1) of the Act are:a) the gross total income of an assessee should include profits and gains;b) those profits and gains are derived by an undertaking or an enterprise from a business referred to in sub- section (4);c) the assessee is entitled for deduction of an amount equal to 100% of the profits and gains derived from such business for 10 consecutive assessment years; andd) in computing the total income of the Assessee, such deduction shall be allowed.12. The import of Section 80-IA is that the total income of an assessee is computed by taking into account the allowable deduction of the profits and gains derived from the eligible business. With respect to the facts of this Appeal, there is no dispute that the deduction quantified under Section 80-IA is Rs.492,78,60,973/-. To make it clear, the said amount represents the net profit made by the Assessee from the eligible business covered under sub-section (4), i.e., from the Assessees business unit involved in generation of power.The claim of the Assessee is that in computing its total income, deductions available to it have to be set-off against the gross total income, while the Revenue contends that it is only the business income which has to be taken into account for the purpose of setting-off the deductions under Sections 80-IA and 80-IB of the Act. To illustrate, the gross total income of the Assessee for the assessment year 2002-03 is less than the quantum of deduction determined under Section 80-IA of the Act. The Assessee contends that income from all other heads including income from other sources, in addition to business income, have to be taken into account for the purpose of allowing the deductions available to the Assessee, subject to the ceiling of gross total income.The Appellate Authority was of the view that there is no limitation on deduction admissible under Section 80-IA of the Act to income under the head business only, with which we agree.To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA.In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows:80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee.15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income.An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section.It is not necessary for us to deal with this submission in view of the findings recorded above. | 0 | 4,237 | 1,469 | ### Instruction:
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other contention of the Revenue is that sub-section (5) of Section 80-IA refers to computation of quantum of deduction being limited from eligible business by taking it as the only source of income. It is contended that the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from eligible business which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the business income. On the other hand, it is the case of the Assessee that sub-section (5) pertains only to determination of the quantum of deduction under sub-section (1) by treating the eligible business as the only source of income. It was submitted by Mr. Vohra, learned Senior Counsel, that the final computation of deduction under Section 80-IA for the assessment year 2002-03 as accepted by the Assessing Officer, was arrived at by taking into account the profits from the eligible business as the only source of income. He submitted that, however, sub-section (5) is a step antecedent to the treatment to be given to the deduction under sub- section (1) and is not concerned with the extent to which the computed deduction be allowed. To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA. The question that arises further with reference to allowing the deduction so computed to arrive at the total income of the Assessee cannot be determined by resorting to interpretation of sub- section (5). 14. It will be useful to refer to the judgment of this Court relied upon by the Revenue as well as the Assessee. In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows: 80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. 15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income. An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section. It is not necessary for us to deal with this submission in view of the findings recorded above.
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### Explanation:
consecutive assessment years; andd) in computing the total income of the Assessee, such deduction shall be allowed.12. The import of Section 80-IA is that the total income of an assessee is computed by taking into account the allowable deduction of the profits and gains derived from the eligible business. With respect to the facts of this Appeal, there is no dispute that the deduction quantified under Section 80-IA is Rs.492,78,60,973/-. To make it clear, the said amount represents the net profit made by the Assessee from the eligible business covered under sub-section (4), i.e., from the Assessees business unit involved in generation of power.The claim of the Assessee is that in computing its total income, deductions available to it have to be set-off against the gross total income, while the Revenue contends that it is only the business income which has to be taken into account for the purpose of setting-off the deductions under Sections 80-IA and 80-IB of the Act. To illustrate, the gross total income of the Assessee for the assessment year 2002-03 is less than the quantum of deduction determined under Section 80-IA of the Act. The Assessee contends that income from all other heads including income from other sources, in addition to business income, have to be taken into account for the purpose of allowing the deductions available to the Assessee, subject to the ceiling of gross total income.The Appellate Authority was of the view that there is no limitation on deduction admissible under Section 80-IA of the Act to income under the head business only, with which we agree.To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA.In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows:80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee.15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income.An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section.It is not necessary for us to deal with this submission in view of the findings recorded above.
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M/S Lilasons Dreweries (P) Ltd. 7 Anr Vs. State Of Madhya Pradesh | P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and then again in a case from Uttar Pradesh in Excise Commissioner, U. P. v. Ram Kumar 1976 (3) SCC(Tax) 360 : 1976 Supp SCR 532). Now if the exaction under Rule 22 of the Brewery Rules is an exaction not authorised under Section 25 and is being made as if additional excise duty, the three cases aforequoted would nip the demand outright. But if it is an additional payment under Section 27 as consideration for the grant of licence, or a further fee or condition of licence, as contended by the respondent-State then it may have to be sustained. It would be relevant to take note of another decision of this Court in Panna Lal v. State of Rajasthan ( 1975 (2) SCC 633 ; 1976 (1) SCR 219 ) at this stage in which the contractual obligation of the licensee to pay the guaranteed or stipulated sum mentioned in the licence was held not to be dependent on the quantum of liquor held by him and no excise duty was held charged or chargeable on undrawn liquor under the licence. The afore-said case cannot advance the defence of the State for there is no lump sum payment stipulated as such in the instant licence. The licence only mentions that the licensee would be bound by the Brewery Rules. The High Court in that situation went on to lean on Sections 62(2)(h) and 28 when discovering there was no express provision in the Act for realisation of charges in respect of pay of officers posted for control of breweries. But when we analyse the latter part of Rule 22, the following position emerges(i) The pay of all such officers shall be met by the Government; [the Government owns the responsibility]. (ii) if the annual charges do not exceed 5 per cent of the duty leviable on the issue made from the brewery to districts within the State, nothing is realisable from the brewer; (iii) 5 per cent of the duty has been considered enough from which to reimburse the Government for the pay of such officers; and (iv) in case the annual charges exceed 5 per cent of the duty leviable then the excess shall be realised from the brewer, i.e., to reimburse the Government for the pay of all such officers 9. The excise duty collected goes to the coffers of the State. The pay of officers has to come out from coffers of the State. Five per cent of the duty leviable is assessed to meet the pay of such officers, which the Government, but for the rule, is otherwise supposed to meet. This part of the rule is purely internal between the Government and its officers. The licensee is least concerned as to how the excise duty leviable would be appropriated. It is only in the case of a shortfall when the excess is sought to be realised from the brewer that he gets affected. Now what is this excess ? It is obviously the sum which falls short of the duty leviable. In other words, it is this for the brewer : "You have not lifted enough quantities of beer and sent them to districts within the State. Thus the State has not earned enough excise duty resulting in a shortfall in its 5%. That does not go to meet the annual expenses of the officers. Therefore you meet the shortfall, without lifting the goods." * Therefore, the shortfall partakes of the same colour and content. It cannot for a moment be suggested that when there is a shortfall, the demand is as if of an "additional fee or consideration" and not additional excise duty. It is obvious from the language of the rule in the event of the excise duty leviable falling short of the expected five per cent to meet the pays of the officers cannot be met therefrom, the State has all the same to pay. The measure goes to recoup the State of the charges by demanding a sum equals to the duty leviable to that extent without lifting excisable articles. On this understanding arrived at the demand is hit, in our view, by the ratio of Banerjee case ( 1970 (2) SCC 467 : 1970 (1) SCR 844). Firm Gappulal case ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and Ram Kumar case ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360 : 1976 Supp SCR 532) and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule-making power of the State10. Now with regard to the suggested wide amplitude of Section 62(2)(h) and Section 28 and condition of licence, all we need to say is that though under Section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Government may direct etc., this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act. As we have analysed earlier, the payment asked, on the contingency of events, cannot partake the character of a fee so as to come within the purview of Section 28. And if it does not the support of Section 62(2)(h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived of in Section 27 is a consideration over and above the excise duty. The way we have analysed Rule 22, the terms of Section 27 do not go to retrieve the situation. | 1[ds]4. The State has the exclusive right or privilege of manufacture or sale of liquor. There is no fundamental right of any citizen to carry on trade and business of liquor. This is the settled position of law.9. The excise duty collected goes to the coffers of the State. The pay of officers has to come out from coffers of the State. Five per cent of the duty leviable is assessed to meet the pay of such officers, which the Government, but for the rule, is otherwise supposed to meet. This part of the rule is purely internal between the Government and its officers. The licensee is least concerned as to how the excise duty leviable would be appropriated. It is only in the case of a shortfall when the excess is sought to be realised from the brewer that he gets affected. Now what is this excess ? It is obviously the sum which falls short of the duty leviable. In other words, it is this for the brewerhave not lifted enough quantities of beer and sent them to districts within the State. Thus the State has not earned enough excise duty resulting in a shortfall in its 5%. That does not go to meet the annual expenses of the officers. Therefore you meet the shortfall, without lifting the goods."the shortfall partakes of the same colour and content. It cannot for a moment be suggested that when there is a shortfall, the demand is as if of an "additional fee or consideration" and not additional excise duty. It is obvious from the language of the rule in the event of the excise duty leviable falling short of the expected five per cent to meet the pays of the officers cannot be met therefrom, the State has all the same to pay. The measure goes to recoup the State of the charges by demanding a sum equals to the duty leviable to that extent without lifting excisable articles. On this understanding arrived at the demand is hit, in our view, by the ratio of Banerjee case ( 1970 (2) SCC 467 : 1970 (1) SCR 844). Firm Gappulal case ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and Ram Kumar case ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360 : 1976 Supp SCR 532) and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule-making power of the State10. Now with regard to the suggested wide amplitude of Section 62(2)(h) and Section 28 and condition of licence, all we need to say is that though under Section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Government may direct etc., this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act. As we have analysed earlier, the payment asked, on the contingency of events, cannot partake the character of a fee so as to come within the purview of Section 28. And if it does not the support of Section 62(2)(h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived of in Section 27 is a consideration over and above the excise duty. The way we have analysed Rule 22, the terms of Section 27 do not go to retrieve the situation | 1 | 3,312 | 714 | ### 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:
P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and then again in a case from Uttar Pradesh in Excise Commissioner, U. P. v. Ram Kumar 1976 (3) SCC(Tax) 360 : 1976 Supp SCR 532). Now if the exaction under Rule 22 of the Brewery Rules is an exaction not authorised under Section 25 and is being made as if additional excise duty, the three cases aforequoted would nip the demand outright. But if it is an additional payment under Section 27 as consideration for the grant of licence, or a further fee or condition of licence, as contended by the respondent-State then it may have to be sustained. It would be relevant to take note of another decision of this Court in Panna Lal v. State of Rajasthan ( 1975 (2) SCC 633 ; 1976 (1) SCR 219 ) at this stage in which the contractual obligation of the licensee to pay the guaranteed or stipulated sum mentioned in the licence was held not to be dependent on the quantum of liquor held by him and no excise duty was held charged or chargeable on undrawn liquor under the licence. The afore-said case cannot advance the defence of the State for there is no lump sum payment stipulated as such in the instant licence. The licence only mentions that the licensee would be bound by the Brewery Rules. The High Court in that situation went on to lean on Sections 62(2)(h) and 28 when discovering there was no express provision in the Act for realisation of charges in respect of pay of officers posted for control of breweries. But when we analyse the latter part of Rule 22, the following position emerges(i) The pay of all such officers shall be met by the Government; [the Government owns the responsibility]. (ii) if the annual charges do not exceed 5 per cent of the duty leviable on the issue made from the brewery to districts within the State, nothing is realisable from the brewer; (iii) 5 per cent of the duty has been considered enough from which to reimburse the Government for the pay of such officers; and (iv) in case the annual charges exceed 5 per cent of the duty leviable then the excess shall be realised from the brewer, i.e., to reimburse the Government for the pay of all such officers 9. The excise duty collected goes to the coffers of the State. The pay of officers has to come out from coffers of the State. Five per cent of the duty leviable is assessed to meet the pay of such officers, which the Government, but for the rule, is otherwise supposed to meet. This part of the rule is purely internal between the Government and its officers. The licensee is least concerned as to how the excise duty leviable would be appropriated. It is only in the case of a shortfall when the excess is sought to be realised from the brewer that he gets affected. Now what is this excess ? It is obviously the sum which falls short of the duty leviable. In other words, it is this for the brewer : "You have not lifted enough quantities of beer and sent them to districts within the State. Thus the State has not earned enough excise duty resulting in a shortfall in its 5%. That does not go to meet the annual expenses of the officers. Therefore you meet the shortfall, without lifting the goods." * Therefore, the shortfall partakes of the same colour and content. It cannot for a moment be suggested that when there is a shortfall, the demand is as if of an "additional fee or consideration" and not additional excise duty. It is obvious from the language of the rule in the event of the excise duty leviable falling short of the expected five per cent to meet the pays of the officers cannot be met therefrom, the State has all the same to pay. The measure goes to recoup the State of the charges by demanding a sum equals to the duty leviable to that extent without lifting excisable articles. On this understanding arrived at the demand is hit, in our view, by the ratio of Banerjee case ( 1970 (2) SCC 467 : 1970 (1) SCR 844). Firm Gappulal case ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and Ram Kumar case ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360 : 1976 Supp SCR 532) and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule-making power of the State10. Now with regard to the suggested wide amplitude of Section 62(2)(h) and Section 28 and condition of licence, all we need to say is that though under Section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Government may direct etc., this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act. As we have analysed earlier, the payment asked, on the contingency of events, cannot partake the character of a fee so as to come within the purview of Section 28. And if it does not the support of Section 62(2)(h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived of in Section 27 is a consideration over and above the excise duty. The way we have analysed Rule 22, the terms of Section 27 do not go to retrieve the situation.
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1
### Explanation:
4. The State has the exclusive right or privilege of manufacture or sale of liquor. There is no fundamental right of any citizen to carry on trade and business of liquor. This is the settled position of law.9. The excise duty collected goes to the coffers of the State. The pay of officers has to come out from coffers of the State. Five per cent of the duty leviable is assessed to meet the pay of such officers, which the Government, but for the rule, is otherwise supposed to meet. This part of the rule is purely internal between the Government and its officers. The licensee is least concerned as to how the excise duty leviable would be appropriated. It is only in the case of a shortfall when the excess is sought to be realised from the brewer that he gets affected. Now what is this excess ? It is obviously the sum which falls short of the duty leviable. In other words, it is this for the brewerhave not lifted enough quantities of beer and sent them to districts within the State. Thus the State has not earned enough excise duty resulting in a shortfall in its 5%. That does not go to meet the annual expenses of the officers. Therefore you meet the shortfall, without lifting the goods."the shortfall partakes of the same colour and content. It cannot for a moment be suggested that when there is a shortfall, the demand is as if of an "additional fee or consideration" and not additional excise duty. It is obvious from the language of the rule in the event of the excise duty leviable falling short of the expected five per cent to meet the pays of the officers cannot be met therefrom, the State has all the same to pay. The measure goes to recoup the State of the charges by demanding a sum equals to the duty leviable to that extent without lifting excisable articles. On this understanding arrived at the demand is hit, in our view, by the ratio of Banerjee case ( 1970 (2) SCC 467 : 1970 (1) SCR 844). Firm Gappulal case ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 (2) SCR 1041 ) and Ram Kumar case ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360 : 1976 Supp SCR 532) and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule-making power of the State10. Now with regard to the suggested wide amplitude of Section 62(2)(h) and Section 28 and condition of licence, all we need to say is that though under Section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Government may direct etc., this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act. As we have analysed earlier, the payment asked, on the contingency of events, cannot partake the character of a fee so as to come within the purview of Section 28. And if it does not the support of Section 62(2)(h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived of in Section 27 is a consideration over and above the excise duty. The way we have analysed Rule 22, the terms of Section 27 do not go to retrieve the situation
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MAHAVEER KUMAR JAIN Vs. COMMNR. OF INCOME TAX | irrespective of the place of residence, income accruing or arising in Sikkim, would not be taxable in India, as per clause (k) of Article 371F of the Constitution and is taxable only under the Sikkim State Income Tax Rules, 1948. The contention seems to be based on erroneous assumption and the simple answer to the said contention is that though the IT Act is not applicable to various other countries but still the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of IT Act.9. The appellant, being a resident of Rajasthan, received the income arising from winning of lotteries from Sikkim during the Assessment Year in question was liable to be included in the hands of the Assessee as resident of India within the State of Rajasthan where IT Act was in force notwithstanding that the same had accrued or arisen to him at a place where the IT Act was not in force even in respect of income accruing to him without taxable territory. In the above backdrop, it would be apposite to refer Section 5 of the IT Act which reads as under:-“5-Scope of total Income:-(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a) is received or deemed to be received in India in such a year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year; or x x x x x”The very wordings of Section 5 of the IT Act show that it casts a very wide net and all incomes accruing anywhere in the world would be brought within its ambit. A combined reading of both the clauses makes it clear that any income accrued or received in India would be included in his total income for taxing purposes under the IT Act. However, in the present case, we find that the amount has been earned by the appellant-assessee in the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by the appellant.10. The result, therefore, is that, while Section 5 of the IT Act would not be applicable, the existing Sikkim State Income Tax Rules, 1948 would be applicable. Thus, on the income, it would appear that Income-tax would be payable, under Sikkim State Income Tax Rules, 1948 and not under the IT Act. Since Sikkim is a part of India for the accounting year, there would appear to be, on the same income, two types of income-taxes cannot be applied.11. In the above backdrop, it would be appropriate to refer the decision of this Court in the case of Laxmipat Singhania vs. Commissioner of Income Tax, U.P. (1969) 72 ITR 291 at 294 wherein this Court has observed that“It is a fundamental rule of law of taxation that, unless otherwise expressly provided, income cannot be taxed twice".12. Further, in a decision of this Court in Jain Brothers and Others vs. Union of India and Others (1970) 77 ITR 107 (SC), it has been held as under:-“6 It is not disputed that there can be double taxation if the legislature has distinctly enacted it. It is only when there are general words of taxation and they have to be interpreted, they cannot be so interpreted as to tax the subject twice over to the same tax….. If any double taxation is involved, the Legislature itself has, in express words, sanctioned it. It is not open to any one thereafter to invoke the general principles that the subject cannot be taxed twice over."13. The above referred cases make it clear that there is no prohibition as such on double taxation provided that the legislature contains a special provision in this regard. Now, the only question remains to be decided is whether in fact there is a specific provision for including the income earned from the Sikkim lottery ticket prior to 01.04.1990 and after 1975, in the income-tax return or not. We have gone through the relevant provisions but there seems to be no such provision in the IT Act wherein a specific provision has been made by the legislature for including such an income by an assessee from lottery ticket. In the absence of any such provision, the assessee in the present case cannot be subjected to double taxation. Furthermore, a taxing Statute should not be interpreted in such a manner that its effect will be to cast a burden twice over for the payment of tax on the taxpayer unless the language of the Statute is so compelling that the court has no alternative than to accept it. In a case of reasonable doubt, the construction most beneficial to the taxpayer is to be adopted. So, it is clear enough that the income in the present case is taxable only under one law. By virtue of clause (k) to Article 371F of the Constitution which starts with a non-obstante clause, it would be clear that only the Sikkim Regulations on Income-tax would be applicable in the present case. Therefore, the income cannot be brought to tax any further by applying the rates of the IT Act.14. In view of the aforementioned discussions, we are of the considered view that once the assessee has paid the income tax at source in the State of Sikkim as per the law applicable at the relevant time in Sikkim, the same income was not taxable under the IT Act, 1961. Having decided so, the other issue whether the income that is to be allowed deduction under section 80 TT of the IT Act is on ‘Net Income’ or ‘Gross Income’, becomes academic.15. | 1[ds]e case of the assessee is that irrespective of the place of residence, income accruing or arising in Sikkim, would not be taxable in India, as per clause (k) of Article 371F of the Constitution and is taxable only under the Sikkim State Income Tax Rules, 1948.The contention seems to be based on erroneous assumption and the simple answer to the said contention is that though the IT Act is not applicable to various other countries but still the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of ITvery wordings of Section 5 of the IT Act show that it casts a very wide net and all incomes accruing anywhere in the world would be brought within its ambit. A combined reading of both the clauses makes it clear that any income accrued or received in India would be included in his total income for taxing purposes under the IT Act. However, in the present case, we find that the amount has been earned by thein the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by theThe result, therefore, is that, while Section 5 of the IT Act would not be applicable, the existing Sikkim State Income Tax Rules, 1948 would be applicable. Thus, on the income, it would appear thatwould be payable, under Sikkim State Income Tax Rules, 1948 and not under the IT Act. Since Sikkim is a part of India for the accounting year, there would appear to be, on the same income, two types ofThe above referred cases make it clear that there is no prohibition as such on double taxation provided that the legislature contains a special provision in this regard. Now, the only question remains to be decided is whether in fact there is a specific provision for including the income earned from the Sikkim lottery ticket prior to 01.04.1990 and after 1975, in thereturn or not. We have gone through the relevant provisions but there seems to be no such provision in the IT Act wherein a specific provision has been made by the legislature for including such an income by an assessee from lottery ticket. In the absence of any such provision, the assessee in the present case cannot be subjected to double taxation. Furthermore, a taxing Statute should not be interpreted in such a manner that its effect will be to cast a burden twice over for the payment of tax on the taxpayer unless the language of the Statute is so compelling that the court has no alternative than to accept it. In a case of reasonable doubt, the construction most beneficial to the taxpayer is to be adopted. So, it is clear enough that the income in the present case is taxable only under one law. By virtue of clause (k) to Article 371F of the Constitution which starts with aclause, it would be clear that only the Sikkim Regulations onwould be applicable in the present case. Therefore, the income cannot be brought to tax any further by applying the rates of the ITIn view of the aforementioned discussions, we are of the considered view that once the assessee has paid the income tax at source in the State of Sikkim as per the law applicable at the relevant time in Sikkim, the same income was not taxable under the IT Act, 1961. Having decided so, the other issue whether the income that is to be allowed deduction under section 80 TT of the IT Act is on ‘Netbecomes academic. | 1 | 3,005 | 685 | ### 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:
irrespective of the place of residence, income accruing or arising in Sikkim, would not be taxable in India, as per clause (k) of Article 371F of the Constitution and is taxable only under the Sikkim State Income Tax Rules, 1948. The contention seems to be based on erroneous assumption and the simple answer to the said contention is that though the IT Act is not applicable to various other countries but still the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of IT Act.9. The appellant, being a resident of Rajasthan, received the income arising from winning of lotteries from Sikkim during the Assessment Year in question was liable to be included in the hands of the Assessee as resident of India within the State of Rajasthan where IT Act was in force notwithstanding that the same had accrued or arisen to him at a place where the IT Act was not in force even in respect of income accruing to him without taxable territory. In the above backdrop, it would be apposite to refer Section 5 of the IT Act which reads as under:-“5-Scope of total Income:-(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a) is received or deemed to be received in India in such a year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year; or x x x x x”The very wordings of Section 5 of the IT Act show that it casts a very wide net and all incomes accruing anywhere in the world would be brought within its ambit. A combined reading of both the clauses makes it clear that any income accrued or received in India would be included in his total income for taxing purposes under the IT Act. However, in the present case, we find that the amount has been earned by the appellant-assessee in the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by the appellant.10. The result, therefore, is that, while Section 5 of the IT Act would not be applicable, the existing Sikkim State Income Tax Rules, 1948 would be applicable. Thus, on the income, it would appear that Income-tax would be payable, under Sikkim State Income Tax Rules, 1948 and not under the IT Act. Since Sikkim is a part of India for the accounting year, there would appear to be, on the same income, two types of income-taxes cannot be applied.11. In the above backdrop, it would be appropriate to refer the decision of this Court in the case of Laxmipat Singhania vs. Commissioner of Income Tax, U.P. (1969) 72 ITR 291 at 294 wherein this Court has observed that“It is a fundamental rule of law of taxation that, unless otherwise expressly provided, income cannot be taxed twice".12. Further, in a decision of this Court in Jain Brothers and Others vs. Union of India and Others (1970) 77 ITR 107 (SC), it has been held as under:-“6 It is not disputed that there can be double taxation if the legislature has distinctly enacted it. It is only when there are general words of taxation and they have to be interpreted, they cannot be so interpreted as to tax the subject twice over to the same tax….. If any double taxation is involved, the Legislature itself has, in express words, sanctioned it. It is not open to any one thereafter to invoke the general principles that the subject cannot be taxed twice over."13. The above referred cases make it clear that there is no prohibition as such on double taxation provided that the legislature contains a special provision in this regard. Now, the only question remains to be decided is whether in fact there is a specific provision for including the income earned from the Sikkim lottery ticket prior to 01.04.1990 and after 1975, in the income-tax return or not. We have gone through the relevant provisions but there seems to be no such provision in the IT Act wherein a specific provision has been made by the legislature for including such an income by an assessee from lottery ticket. In the absence of any such provision, the assessee in the present case cannot be subjected to double taxation. Furthermore, a taxing Statute should not be interpreted in such a manner that its effect will be to cast a burden twice over for the payment of tax on the taxpayer unless the language of the Statute is so compelling that the court has no alternative than to accept it. In a case of reasonable doubt, the construction most beneficial to the taxpayer is to be adopted. So, it is clear enough that the income in the present case is taxable only under one law. By virtue of clause (k) to Article 371F of the Constitution which starts with a non-obstante clause, it would be clear that only the Sikkim Regulations on Income-tax would be applicable in the present case. Therefore, the income cannot be brought to tax any further by applying the rates of the IT Act.14. In view of the aforementioned discussions, we are of the considered view that once the assessee has paid the income tax at source in the State of Sikkim as per the law applicable at the relevant time in Sikkim, the same income was not taxable under the IT Act, 1961. Having decided so, the other issue whether the income that is to be allowed deduction under section 80 TT of the IT Act is on ‘Net Income’ or ‘Gross Income’, becomes academic.15.
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e case of the assessee is that irrespective of the place of residence, income accruing or arising in Sikkim, would not be taxable in India, as per clause (k) of Article 371F of the Constitution and is taxable only under the Sikkim State Income Tax Rules, 1948.The contention seems to be based on erroneous assumption and the simple answer to the said contention is that though the IT Act is not applicable to various other countries but still the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of ITvery wordings of Section 5 of the IT Act show that it casts a very wide net and all incomes accruing anywhere in the world would be brought within its ambit. A combined reading of both the clauses makes it clear that any income accrued or received in India would be included in his total income for taxing purposes under the IT Act. However, in the present case, we find that the amount has been earned by thein the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by theThe result, therefore, is that, while Section 5 of the IT Act would not be applicable, the existing Sikkim State Income Tax Rules, 1948 would be applicable. Thus, on the income, it would appear thatwould be payable, under Sikkim State Income Tax Rules, 1948 and not under the IT Act. Since Sikkim is a part of India for the accounting year, there would appear to be, on the same income, two types ofThe above referred cases make it clear that there is no prohibition as such on double taxation provided that the legislature contains a special provision in this regard. Now, the only question remains to be decided is whether in fact there is a specific provision for including the income earned from the Sikkim lottery ticket prior to 01.04.1990 and after 1975, in thereturn or not. We have gone through the relevant provisions but there seems to be no such provision in the IT Act wherein a specific provision has been made by the legislature for including such an income by an assessee from lottery ticket. In the absence of any such provision, the assessee in the present case cannot be subjected to double taxation. Furthermore, a taxing Statute should not be interpreted in such a manner that its effect will be to cast a burden twice over for the payment of tax on the taxpayer unless the language of the Statute is so compelling that the court has no alternative than to accept it. In a case of reasonable doubt, the construction most beneficial to the taxpayer is to be adopted. So, it is clear enough that the income in the present case is taxable only under one law. By virtue of clause (k) to Article 371F of the Constitution which starts with aclause, it would be clear that only the Sikkim Regulations onwould be applicable in the present case. Therefore, the income cannot be brought to tax any further by applying the rates of the ITIn view of the aforementioned discussions, we are of the considered view that once the assessee has paid the income tax at source in the State of Sikkim as per the law applicable at the relevant time in Sikkim, the same income was not taxable under the IT Act, 1961. Having decided so, the other issue whether the income that is to be allowed deduction under section 80 TT of the IT Act is on ‘Netbecomes academic.
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Ram Sarup Vs. The District Land Acquisition Officer, Aligarh & Others | declare under Section 6 that he was satisfied that the land mentioned in the schedule was needed for a public purpose. Under Section 7 the Collector was directed to take order for the acquisition of the land. In the schedule the same words appeared as appeared in the notification under Section 4 viz. : "For what purpose required. - For the construction of residential quarters for the members of the Aligarh Co-operative Housing Society Ltd., Vishnupuri, Aligarh. 4. On January 22, 1962, an award was given with regard to an area covering 27 Bighas odd. 4-A. It appears that nine petitions were filed under Article 226 of the Constitution in the Allahabad High Court challenging the acquisition made. Some of these petitions were heard by Mathur, J. who allowed them. The petition out of which this appeal has arisen was disposed of by Broome, J. and he dismissed it. An appeal was filed before the Division Bench but the same was dismissed. 5. The first argument that has been sought to be raised before us on behalf of the appellant is that the notifications under Sections 4 and 6 and, in particular, the notification under Section 6 says that the land which was being acquired was needed for a public purpose and not for a company although in the schedule it was mentioned that the purpose for which it was required was the construction of residential quarters for the purpose of members of the Aligarh Co-operative Housing Society Ltd., Vishnupuri, Aligarh. A good deal of reliance has been placed on the decision of this Court in Shyam Behari and Others v. State of Madhya Pradesh ((1964) 6 SCR 636 : AIR 1965 SC 427 .) in which it was laid down that where the entire compensation is to be paid by a company (which is admittedly the case here) the notification under Section 6 must contain a declaration that the land is needed for a company. No notification under Section 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose. Such a declaration requires that either wholly or in part, compensation must come out of public revenue or some fund controlled or managed by a local authority. In that case, however, it is apparent that the public purpose which was mentioned in the notification issued under Section 4 was "for the construction of buildings for godowns and administrative officer". In the notification issued under Section 6 all that was stated was that the land was needed for a public purpose, namely for the Premier Refractory Factory and work connected therewith. However, the company for which the land was required was the Premier Refractories of India Private Limited, Katni. It was under these circumstances that this Court pointed not that there was nothing in the notifications to show that the land was needed for the Premier Refractories of India Private Limited, Katni or any other company. All that the notification under Section 6 said was that the land was needed for a public purpose and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. There was no mention of the company and it could not necessarily be concluded that the Premier Refractory Factory was a company or a factory; for a factory is something very different from a company and may belong to a company or Government or to a local body or even to an individual. 6. In our judgment the above decision is clearly distinguishable from the facts of the present case. As already mentioned, in both the notification issued under Sections 4 and 6 of the Act is was clearly mentioned in the schedule that the purpose for which the acquisition was being made was the construction of residential quarters for the members of Co-operative Housing Society Ltd., Vishnupuri, Aligarh. 7. The present case has greater similarity with the facts in a subsequent decision of this Court in State of West Bengal and Others. v. P. N. Talukdar and Others (AIR 1965 SC 646 : (1966) 1 SCJ 28.). There in the notification under Section 6 it was stated that the land was needed for a public purpose, namely for the construction of staff quarters, etc., of Ramakrishna Mission and was needed for that public purpose. It was held that the acquisition was for a society which was a company within the meaning of Section 3(c) of the Land acquisition Act and that the notification did indicate that the land was needed for a company though it did not say so in so many words. Reference was made there to the agreement which had been entered into between the company and the Government. In the present case also an agreement had been entered into and in view of the statements contained in the schedule in the notification we have no manner of doubt that the acquisition was clearly being made for a company. The view taken by Broome, J. for these reasons must be upheld. 8. Another point sought to be raised on behalf of the appellant was that the notification under Section 6 had been rescinded with regard to some of the areas and, therefore, there could be no acquisition of the area in question. Even in the writ petition no such contention or plea was raised nor was any proposition formulated in the terms in which it is sought to be urged before us. It raises not merely a pure question of law but also involves facts. It will have to be determined whether the details which are given in Para 10 of the special leave petition are factually correct. It is argued that these facts are apparent from the award which is already on the record. We are unable to allow such a point to be raised in this Court because it was not even raised in the writ petition. | 0[ds]6. In our judgment the above decision is clearly distinguishable from the facts of the present case. As already mentioned, in both the notification issued under Sections 4 and 6 of the Act is was clearly mentioned in the schedule that the purpose for which the acquisition was being made was the construction of residential quarters for the members ofe Housing Society Ltd., Vishnupuri, Aligarh7. The present case has greater similarity with the facts in a subsequent decision of this Court in State of West Bengal and Others. v. P. N. Talukdar and Others (AIR 1965 SC 646 : (1966) 1 SCJ 28.). There in the notification under Section 6 it was stated that the land was needed for a public purpose, namely for the construction of staff quarters, etc., of Ramakrishna Mission and was needed for that public purpose. It was held that the acquisition was for a society which was a company within the meaning of Section 3(c) of the Land acquisition Act and that the notification did indicate that the land was needed for a company though it did not say so in so many words. Reference was made there to the agreement which had been entered into between the company and the Government. In the present case also an agreement had been entered into and in view of the statements contained in the schedule in the notification we have no manner of doubt that the acquisition was clearly being made for a company. The view taken by Broome, J. for these reasons must be upheld8. Another point sought to be raised on behalf of the appellant was that the notification under Section 6 had been rescinded with regard to some of the areas and, therefore, there could be no acquisition of the area in question. Even in the writ petition no such contention or plea was raised nor was any proposition formulated in the terms in which it is sought to be urged before us. It raises not merely a pure question of law but also involves facts. It will have to be determined whether the details which are given in Para 10 of the special leave petition are factually correct. It is argued that these facts are apparent from the award which is already on the record. We are unable to allow such a point to be raised in this Court because it was not even raised in the writ petition. | 0 | 1,293 | 442 | ### Instruction:
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declare under Section 6 that he was satisfied that the land mentioned in the schedule was needed for a public purpose. Under Section 7 the Collector was directed to take order for the acquisition of the land. In the schedule the same words appeared as appeared in the notification under Section 4 viz. : "For what purpose required. - For the construction of residential quarters for the members of the Aligarh Co-operative Housing Society Ltd., Vishnupuri, Aligarh. 4. On January 22, 1962, an award was given with regard to an area covering 27 Bighas odd. 4-A. It appears that nine petitions were filed under Article 226 of the Constitution in the Allahabad High Court challenging the acquisition made. Some of these petitions were heard by Mathur, J. who allowed them. The petition out of which this appeal has arisen was disposed of by Broome, J. and he dismissed it. An appeal was filed before the Division Bench but the same was dismissed. 5. The first argument that has been sought to be raised before us on behalf of the appellant is that the notifications under Sections 4 and 6 and, in particular, the notification under Section 6 says that the land which was being acquired was needed for a public purpose and not for a company although in the schedule it was mentioned that the purpose for which it was required was the construction of residential quarters for the purpose of members of the Aligarh Co-operative Housing Society Ltd., Vishnupuri, Aligarh. A good deal of reliance has been placed on the decision of this Court in Shyam Behari and Others v. State of Madhya Pradesh ((1964) 6 SCR 636 : AIR 1965 SC 427 .) in which it was laid down that where the entire compensation is to be paid by a company (which is admittedly the case here) the notification under Section 6 must contain a declaration that the land is needed for a company. No notification under Section 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose. Such a declaration requires that either wholly or in part, compensation must come out of public revenue or some fund controlled or managed by a local authority. In that case, however, it is apparent that the public purpose which was mentioned in the notification issued under Section 4 was "for the construction of buildings for godowns and administrative officer". In the notification issued under Section 6 all that was stated was that the land was needed for a public purpose, namely for the Premier Refractory Factory and work connected therewith. However, the company for which the land was required was the Premier Refractories of India Private Limited, Katni. It was under these circumstances that this Court pointed not that there was nothing in the notifications to show that the land was needed for the Premier Refractories of India Private Limited, Katni or any other company. All that the notification under Section 6 said was that the land was needed for a public purpose and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. There was no mention of the company and it could not necessarily be concluded that the Premier Refractory Factory was a company or a factory; for a factory is something very different from a company and may belong to a company or Government or to a local body or even to an individual. 6. In our judgment the above decision is clearly distinguishable from the facts of the present case. As already mentioned, in both the notification issued under Sections 4 and 6 of the Act is was clearly mentioned in the schedule that the purpose for which the acquisition was being made was the construction of residential quarters for the members of Co-operative Housing Society Ltd., Vishnupuri, Aligarh. 7. The present case has greater similarity with the facts in a subsequent decision of this Court in State of West Bengal and Others. v. P. N. Talukdar and Others (AIR 1965 SC 646 : (1966) 1 SCJ 28.). There in the notification under Section 6 it was stated that the land was needed for a public purpose, namely for the construction of staff quarters, etc., of Ramakrishna Mission and was needed for that public purpose. It was held that the acquisition was for a society which was a company within the meaning of Section 3(c) of the Land acquisition Act and that the notification did indicate that the land was needed for a company though it did not say so in so many words. Reference was made there to the agreement which had been entered into between the company and the Government. In the present case also an agreement had been entered into and in view of the statements contained in the schedule in the notification we have no manner of doubt that the acquisition was clearly being made for a company. The view taken by Broome, J. for these reasons must be upheld. 8. Another point sought to be raised on behalf of the appellant was that the notification under Section 6 had been rescinded with regard to some of the areas and, therefore, there could be no acquisition of the area in question. Even in the writ petition no such contention or plea was raised nor was any proposition formulated in the terms in which it is sought to be urged before us. It raises not merely a pure question of law but also involves facts. It will have to be determined whether the details which are given in Para 10 of the special leave petition are factually correct. It is argued that these facts are apparent from the award which is already on the record. We are unable to allow such a point to be raised in this Court because it was not even raised in the writ petition.
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6. In our judgment the above decision is clearly distinguishable from the facts of the present case. As already mentioned, in both the notification issued under Sections 4 and 6 of the Act is was clearly mentioned in the schedule that the purpose for which the acquisition was being made was the construction of residential quarters for the members ofe Housing Society Ltd., Vishnupuri, Aligarh7. The present case has greater similarity with the facts in a subsequent decision of this Court in State of West Bengal and Others. v. P. N. Talukdar and Others (AIR 1965 SC 646 : (1966) 1 SCJ 28.). There in the notification under Section 6 it was stated that the land was needed for a public purpose, namely for the construction of staff quarters, etc., of Ramakrishna Mission and was needed for that public purpose. It was held that the acquisition was for a society which was a company within the meaning of Section 3(c) of the Land acquisition Act and that the notification did indicate that the land was needed for a company though it did not say so in so many words. Reference was made there to the agreement which had been entered into between the company and the Government. In the present case also an agreement had been entered into and in view of the statements contained in the schedule in the notification we have no manner of doubt that the acquisition was clearly being made for a company. The view taken by Broome, J. for these reasons must be upheld8. Another point sought to be raised on behalf of the appellant was that the notification under Section 6 had been rescinded with regard to some of the areas and, therefore, there could be no acquisition of the area in question. Even in the writ petition no such contention or plea was raised nor was any proposition formulated in the terms in which it is sought to be urged before us. It raises not merely a pure question of law but also involves facts. It will have to be determined whether the details which are given in Para 10 of the special leave petition are factually correct. It is argued that these facts are apparent from the award which is already on the record. We are unable to allow such a point to be raised in this Court because it was not even raised in the writ petition.
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Khadi Gram Udyog Trust Vs. Shri Ram Chandraji Virajman Mandir Sarsaiya Ghat | on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation.In Halsburys Laws of England (3rd Ed.) Vol. 24 at p. 205, Article 369, it is stated :"except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a credit or whose debt is statute-barred has any means of enforcing his claim other than by-action or set-off, the Act does not prevent him from recovering by those means. The Court of Appeal in Curwen v. Milburn (1889) 42 Ch. D. 424 Cotton, L. J. said:"Statute-barred debts are dues, though payment of them cannot be, enforced by action."3. The same view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283 .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available.4. | 0[ds]It is not disputed that several notices were served on the appellant and that he failed to pay the rent within one month from the date of the service of the notice of demand on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred bysame view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283 .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available. | 0 | 1,868 | 1,038 | ### Instruction:
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on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation.In Halsburys Laws of England (3rd Ed.) Vol. 24 at p. 205, Article 369, it is stated :"except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a credit or whose debt is statute-barred has any means of enforcing his claim other than by-action or set-off, the Act does not prevent him from recovering by those means. The Court of Appeal in Curwen v. Milburn (1889) 42 Ch. D. 424 Cotton, L. J. said:"Statute-barred debts are dues, though payment of them cannot be, enforced by action."3. The same view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283 .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available.4.
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It is not disputed that several notices were served on the appellant and that he failed to pay the rent within one month from the date of the service of the notice of demand on him. Another opportunity for payment of rent is provided to the tenant under section 20(4) which provides that "In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9 per cent per annum and the landlord- costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under sub-section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub- section, therefore, though the, tenant has not complied with the requirement of sub-section (2) of section 20, if he pays it the first hearing of the suit unconditionally the entire amount of rent the court may pass an order relieving the tenant against this liability for eviction. In this case the appellant deposited on 13-2-1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period 1.5.1973 to 28.2.1975 together with interest etc. The contention of that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not include the rent for the period 1.1.1960 to 31.12 .1970 as the claim is barred by time. The District Judge who tried the suit was of the view that the tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under section 20(4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than 4 months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of sub-section (2) of section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal. It will be seen that under section 20(2) of the Act, the landlord gets a cause of action for evicting the tenant when the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with section 20(2). The tenant can take advantage of the benefit conferred by section 20(4) only when he pays the entire amount of rent due as required under section 20(4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred bysame view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &Others([1958] S.C.R. 1122.) where it he ld that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and Anr. v. Mi. Maya Devi and Others (A.T.P. 1975 Pat. 283 .), Untwalia, C. J. as he then was, has stated "There is a catena of decisions in support of what has been said by (Tek Chan d, p.330 paragraph 12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right." The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the sche me of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available.
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Jijabai Vithalrao Gajre Vs. Pathankhan & Ors | and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.12. It has also been found by the High Court and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. There is no evidence to establish that the transaction of lease is in any way an imprudent one or not in the interest of the minor appellant It has also been found that the lease in favour of the tenant has begun from 1951. Though the lease for some years was oral, for the year 1956-57 a written lease deed was executed on February, 12, 1956 by the tenant in favour of the appellant represented by her mother as guardian. If so, it follows, as held by the High Court, that the tenancy had been created even prior to the first day of April, 1957". Though the revenue tribunals also found that the tenant was in possession of the properties as lessee from l951 onwards, they declined to recognise his rights, on the view that those leases were not binding on the appellant. That view, as we have already pointed out, is erroneous. Therefore, it follows that the contention of Mr. Sanghi that the High Courts view about the validity and legality of the lease executed by the mother on February 12, 1956 is not correct, cannot be accepted.13. In view of the above ending that the lease executed on February 12, 1956 is valid and binding on the appellant, it follows that this is not a case of a tenancy created by the landlord "not earlier than the first day of April, 1957" which is one of the essential ingredients for the maintainability of the application under Section 39. Therefore, the third contention of Mr. Sanghi that the construction placed upon Section 39 by the High Court and holding that the application of the appellant is barred by limitation is not correct, does not arise for consideration. The applicability of Section 39 would have arisen for consideration only if it had been found that the lease by the mother is not valid and by virtue of occupation of the land in 1958-59 the tenant is to be considered as a deemed tenant under Section 6.14. We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified. | 0[ds]11. We are not impressed with this contention of Mr. Sanghi. Mr. Sanghi referred us to certain decisions where the powers of a guardian of a minor have been considered. But in the view that we take that the contention of Mr. Sanghi in this regard is not acceptable to us, no useful purpose will he served by reference to those decisions. We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing ofthe Hindu Minority and Guardianship Act, 1956, (Act 32, of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified. | 0 | 4,143 | 1,026 | ### Instruction:
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and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.12. It has also been found by the High Court and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. There is no evidence to establish that the transaction of lease is in any way an imprudent one or not in the interest of the minor appellant It has also been found that the lease in favour of the tenant has begun from 1951. Though the lease for some years was oral, for the year 1956-57 a written lease deed was executed on February, 12, 1956 by the tenant in favour of the appellant represented by her mother as guardian. If so, it follows, as held by the High Court, that the tenancy had been created even prior to the first day of April, 1957". Though the revenue tribunals also found that the tenant was in possession of the properties as lessee from l951 onwards, they declined to recognise his rights, on the view that those leases were not binding on the appellant. That view, as we have already pointed out, is erroneous. Therefore, it follows that the contention of Mr. Sanghi that the High Courts view about the validity and legality of the lease executed by the mother on February 12, 1956 is not correct, cannot be accepted.13. In view of the above ending that the lease executed on February 12, 1956 is valid and binding on the appellant, it follows that this is not a case of a tenancy created by the landlord "not earlier than the first day of April, 1957" which is one of the essential ingredients for the maintainability of the application under Section 39. Therefore, the third contention of Mr. Sanghi that the construction placed upon Section 39 by the High Court and holding that the application of the appellant is barred by limitation is not correct, does not arise for consideration. The applicability of Section 39 would have arisen for consideration only if it had been found that the lease by the mother is not valid and by virtue of occupation of the land in 1958-59 the tenant is to be considered as a deemed tenant under Section 6.14. We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.
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11. We are not impressed with this contention of Mr. Sanghi. Mr. Sanghi referred us to certain decisions where the powers of a guardian of a minor have been considered. But in the view that we take that the contention of Mr. Sanghi in this regard is not acceptable to us, no useful purpose will he served by reference to those decisions. We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing ofthe Hindu Minority and Guardianship Act, 1956, (Act 32, of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.
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MONTHI MENEZES(D) BY LR Vs. DEVAKI AMMA (D) BY LR | the extent of 3.07 acres after finding that such parcel of land was being used for agricultural purposes and without this land, the applicant cannot cultivate the other parcels of land. After the matter was remanded by the High Court for reconsideration, the Tribunal undertook fresh inquiry as regards the said land of Survey No. 119/2A1 and again accepted the prayer of the applicant with the clear finding that the applicant was in possession of 3.07 acres of land in Survey No. 119/2A1 as on 01.03.1974 and prior to it. The Tribunal also held that this land was given to the applicant for better cultivation and development of other parcels of land with him and therefore, non-inclusion of this parcel of land in the lease chit was of no adverse effect on the claim of the applicant. As regards such categorical findings of the Tribunal, the learned Single Judge proceeded to observe that mere possession or mere payment of land revenue was of no effect because there was no material on record to establish a lawful tenancy and landlord-tenant relationship.7. With respect, we are unable to find if the learned Single Judge at all adverted to the reasons that had prevailed with the Tribunal that the land in question was allowed to the tenant for better cultivation of other parcels of land. The learned Single Judge also observed, with reference to the Division Bench decision in Subhakars case (supra) that unless Punja land was shown to have been brought under cultivation, it would not be recorded as agricultural land. However, in the said decision, Division Bench of Karnataka High Court has also observed that the question as to whether Punja Land is cultivable or not is a pure question of fact. In the said decision, grant of occupancy rights was denied on the given set of facts, where only thatched grass had grown naturally on the land in question that was shown to be Punja land and it was also found that there was a built house surrounding the land in question. The said decision in Subhakars case (supra) could only be read in the context of the facts therein and the relevant factual aspects of the present case cannot be ignored.8. While dealing with the intra-court appeal against the order so passed by the learned Single Judge, the Division Bench, in paragraph 2 of its judgment has even gone to the extent of observing that, as per the record, the landlord was in possession of the land in question as on the appointed date. In fact, such had not been the finding even by the learned Single Judge, who proceeded to observe that mere possession by itself cannot establish lawful tenancy. The findings of the Tribunal, on the contrary, had been that the applicant Shri Bona Menezes was in possession of the land in question as on 01.03.1974 and even prior to it.9. The significant aspects of the matter, as taken into consideration by the Tribunal, had been that there was a reference in the lease chit about mango trees, cashew, tamarind and the lessee was to enjoy the fruits of the allied land also. The Tribunal also observed that for the purpose of cultivating other land, the applicant had to depend upon the land in question and hence, the said land was also to be considered as included in the lease chit. The Tribunal also found that the original Survey No. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2; and the first one, being No. 119/2A1 admeasuring 3.07 acres, was in possession of the applicant whereas the other one, being No. 119/2A2 admeasuring 1.64 acres, was in possession of the landlord.10. Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order. | 1[ds]5. We have taken note of the relevant part of the observations made by the Land Tribunal as also by the High Court in this matter. In a comprehension of the entire matter, we are constrained to observe that while disapproving the order passed by the Land Tribunal, the High Court appears to have proceeded either on irrelevant considerations or while ignoring the relevant aspects of the matter. It is for this reason we feel it imperative that the matter be restored for reconsideration by the High Court.Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order. | 1 | 3,614 | 508 | ### 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:
the extent of 3.07 acres after finding that such parcel of land was being used for agricultural purposes and without this land, the applicant cannot cultivate the other parcels of land. After the matter was remanded by the High Court for reconsideration, the Tribunal undertook fresh inquiry as regards the said land of Survey No. 119/2A1 and again accepted the prayer of the applicant with the clear finding that the applicant was in possession of 3.07 acres of land in Survey No. 119/2A1 as on 01.03.1974 and prior to it. The Tribunal also held that this land was given to the applicant for better cultivation and development of other parcels of land with him and therefore, non-inclusion of this parcel of land in the lease chit was of no adverse effect on the claim of the applicant. As regards such categorical findings of the Tribunal, the learned Single Judge proceeded to observe that mere possession or mere payment of land revenue was of no effect because there was no material on record to establish a lawful tenancy and landlord-tenant relationship.7. With respect, we are unable to find if the learned Single Judge at all adverted to the reasons that had prevailed with the Tribunal that the land in question was allowed to the tenant for better cultivation of other parcels of land. The learned Single Judge also observed, with reference to the Division Bench decision in Subhakars case (supra) that unless Punja land was shown to have been brought under cultivation, it would not be recorded as agricultural land. However, in the said decision, Division Bench of Karnataka High Court has also observed that the question as to whether Punja Land is cultivable or not is a pure question of fact. In the said decision, grant of occupancy rights was denied on the given set of facts, where only thatched grass had grown naturally on the land in question that was shown to be Punja land and it was also found that there was a built house surrounding the land in question. The said decision in Subhakars case (supra) could only be read in the context of the facts therein and the relevant factual aspects of the present case cannot be ignored.8. While dealing with the intra-court appeal against the order so passed by the learned Single Judge, the Division Bench, in paragraph 2 of its judgment has even gone to the extent of observing that, as per the record, the landlord was in possession of the land in question as on the appointed date. In fact, such had not been the finding even by the learned Single Judge, who proceeded to observe that mere possession by itself cannot establish lawful tenancy. The findings of the Tribunal, on the contrary, had been that the applicant Shri Bona Menezes was in possession of the land in question as on 01.03.1974 and even prior to it.9. The significant aspects of the matter, as taken into consideration by the Tribunal, had been that there was a reference in the lease chit about mango trees, cashew, tamarind and the lessee was to enjoy the fruits of the allied land also. The Tribunal also observed that for the purpose of cultivating other land, the applicant had to depend upon the land in question and hence, the said land was also to be considered as included in the lease chit. The Tribunal also found that the original Survey No. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2; and the first one, being No. 119/2A1 admeasuring 3.07 acres, was in possession of the applicant whereas the other one, being No. 119/2A2 admeasuring 1.64 acres, was in possession of the landlord.10. Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order.
### Response:
1
### Explanation:
5. We have taken note of the relevant part of the observations made by the Land Tribunal as also by the High Court in this matter. In a comprehension of the entire matter, we are constrained to observe that while disapproving the order passed by the Land Tribunal, the High Court appears to have proceeded either on irrelevant considerations or while ignoring the relevant aspects of the matter. It is for this reason we feel it imperative that the matter be restored for reconsideration by the High Court.Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order.
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COLLECTOR OF CENTRAL EXCISE, AHMEDABAD Vs. METEOR SATELLITE LTD | 1. This appeal has been filed by the Revenue against the judgment of the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred 10 as the Tribunal) dated 16-10-1987. The only question which falls for consideration in this appeal is whether the respondent-Company is entitled to avail the benefit of the exemption from payment of excise duty under Notification No. 71/78 dated 1-3-1978. 2. The respondent-Company was manufacturing motor vehicle parts. Some of the parts so manufactured were specified goods covered under Tariff Item 34-A while others were covered under Tariff Item 68. The clearance of specified goods covered under Tariff Item 34-A by the respondent during the Financial Year 1979-80 was more than Rs 15,00,000 but the aggregate clearance of excisable goods was less than Rs 20,00,000. The exemption granted under Notification No. 71/78 dated 1-3-1978 was not applicable to a manufacturer: (i) during the Financial Year 1978-79, if the aggregate value of the specified goods cleared, if any, by him or on his behalf, for home consumption, from one or more factories, during the period commencing on the 1st day of April, 1977 and ending on the 28th day of February, 1978 he exceeded Rs 13.75 lakhs; (ii) during the Financial Year 1978-79, if such clearances, if any, of the specified goods, had exceeded rupees fifteen lakhs; and (iii) who manufacture excisable goods falling under more than one item number of the said First Schedule and the aggregate value of all of excisable goods cleared by him or on his behalf for home consumption, from one or more factories, during the preceding financial year, had exceeded rupees twenty lakhs. 3. The Tribunal was of the view that the respondent-Company was entitled to the benefit of the exemption under Notification No. 71/78 because the goods manufactured by the respondent-Company fall under more than one item and the total production did not exceed Rs 20,00,000. In taking the said view the Tribunal has followed the judgment of the Calcutta High Court in R.K. Chemical Industries Private Ltd. Vs. Superintendent of Central Excise, Calcutta-III Division and Others, 4. Shri Dushyant Dave, the learned Senior Counsel appearing for the respondent-Company, has pointed out that the said decision of the Calcutta High Court in R.K. Chemical Industries Private Ltd. Vs. Superintendent of Central Excise, Calcutta-III Division and Others, was given by a learned Single Judge of the High Court and appeal against the said judgment was dismissed by the Division Bench of the High Court. Civil Appeal No. 1295 of 1988, Union of India v. R.K. Chemicals Industries (P) Ltd. filed against the decision of the Division Bench of the High Court was dismissed summarily by this Court by order dated Union of India v. R.K. Desai, (1993) 2 SCC 49 . 5. In the order dated 4-2-1997 passed by a two-Judge Bench of this Court whereby this matter has been referred to a larger Bench, reference has been made to the decision of this Court in Collector of Central Excise, Madras Vs. Arason and Company, In that case the Court has considered Notification No. 80/80 dated 19-6-1980 which also granted exemption and was similar to Notification No. 71/78 dated 1-3-1978. Clauses (i) and (ii) of Notification No. 80/80 were in the same terms as Clauses (ii) and (III) of Notification No. 71/78. In that case the respondent was manufacturing two types of specified goods and the question was whether such a case would be covered by Clause (ii) of Notification No. 80/80 which was similar to Clause (iii) of Notification No. 71/78. It was held that since the manufacturer was producing two types of specified goods the case would not be covered by Clause (II) and would fall under Clause (i) which dealt specifically with the specified goods. In the present case the respondent-Company was manufacturing specified goods as well as other goods. The present case cannot, therefore, be held to be covered under Clause (ii) of Notification No. 71/78 and has been rightly held to fall under Clause (iii) of the said notification. | 0[ds]5. In the order dated 4-2-1997 passed by a two-Judge Bench of this Court whereby this matter has been referred to a larger Bench, reference has been made to the decision of this Court in Collector of Central Excise, Madras Vs. Arason and Company, In that case the Court has considered Notification No. 80/80 dated 19-6-1980 which also granted exemption and was similar to Notification No. 71/78 dated 1-3-1978. Clauses (i) and (ii) of Notification No. 80/80 were in the same terms as Clauses (ii) and (III) of Notification No. 71/78. In that case the respondent was manufacturing two types of specified goods and the question was whether such a case would be covered by Clause (ii) of Notification No. 80/80 which was similar to Clause (iii) of Notification No. 71/78. It was held that since the manufacturer was producing two types of specified goods the case would not be covered by Clause (II) and would fall under Clause (i) which dealt specifically with the specified goods. In the present case the respondent-Company was manufacturing specified goods as well as other goods. The present case cannot, therefore, be held to be covered under Clause (ii) of Notification No. 71/78 and has been rightly held to fall under Clause (iii) of the said notification. | 0 | 774 | 257 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. This appeal has been filed by the Revenue against the judgment of the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred 10 as the Tribunal) dated 16-10-1987. The only question which falls for consideration in this appeal is whether the respondent-Company is entitled to avail the benefit of the exemption from payment of excise duty under Notification No. 71/78 dated 1-3-1978. 2. The respondent-Company was manufacturing motor vehicle parts. Some of the parts so manufactured were specified goods covered under Tariff Item 34-A while others were covered under Tariff Item 68. The clearance of specified goods covered under Tariff Item 34-A by the respondent during the Financial Year 1979-80 was more than Rs 15,00,000 but the aggregate clearance of excisable goods was less than Rs 20,00,000. The exemption granted under Notification No. 71/78 dated 1-3-1978 was not applicable to a manufacturer: (i) during the Financial Year 1978-79, if the aggregate value of the specified goods cleared, if any, by him or on his behalf, for home consumption, from one or more factories, during the period commencing on the 1st day of April, 1977 and ending on the 28th day of February, 1978 he exceeded Rs 13.75 lakhs; (ii) during the Financial Year 1978-79, if such clearances, if any, of the specified goods, had exceeded rupees fifteen lakhs; and (iii) who manufacture excisable goods falling under more than one item number of the said First Schedule and the aggregate value of all of excisable goods cleared by him or on his behalf for home consumption, from one or more factories, during the preceding financial year, had exceeded rupees twenty lakhs. 3. The Tribunal was of the view that the respondent-Company was entitled to the benefit of the exemption under Notification No. 71/78 because the goods manufactured by the respondent-Company fall under more than one item and the total production did not exceed Rs 20,00,000. In taking the said view the Tribunal has followed the judgment of the Calcutta High Court in R.K. Chemical Industries Private Ltd. Vs. Superintendent of Central Excise, Calcutta-III Division and Others, 4. Shri Dushyant Dave, the learned Senior Counsel appearing for the respondent-Company, has pointed out that the said decision of the Calcutta High Court in R.K. Chemical Industries Private Ltd. Vs. Superintendent of Central Excise, Calcutta-III Division and Others, was given by a learned Single Judge of the High Court and appeal against the said judgment was dismissed by the Division Bench of the High Court. Civil Appeal No. 1295 of 1988, Union of India v. R.K. Chemicals Industries (P) Ltd. filed against the decision of the Division Bench of the High Court was dismissed summarily by this Court by order dated Union of India v. R.K. Desai, (1993) 2 SCC 49 . 5. In the order dated 4-2-1997 passed by a two-Judge Bench of this Court whereby this matter has been referred to a larger Bench, reference has been made to the decision of this Court in Collector of Central Excise, Madras Vs. Arason and Company, In that case the Court has considered Notification No. 80/80 dated 19-6-1980 which also granted exemption and was similar to Notification No. 71/78 dated 1-3-1978. Clauses (i) and (ii) of Notification No. 80/80 were in the same terms as Clauses (ii) and (III) of Notification No. 71/78. In that case the respondent was manufacturing two types of specified goods and the question was whether such a case would be covered by Clause (ii) of Notification No. 80/80 which was similar to Clause (iii) of Notification No. 71/78. It was held that since the manufacturer was producing two types of specified goods the case would not be covered by Clause (II) and would fall under Clause (i) which dealt specifically with the specified goods. In the present case the respondent-Company was manufacturing specified goods as well as other goods. The present case cannot, therefore, be held to be covered under Clause (ii) of Notification No. 71/78 and has been rightly held to fall under Clause (iii) of the said notification.
### Response:
0
### Explanation:
5. In the order dated 4-2-1997 passed by a two-Judge Bench of this Court whereby this matter has been referred to a larger Bench, reference has been made to the decision of this Court in Collector of Central Excise, Madras Vs. Arason and Company, In that case the Court has considered Notification No. 80/80 dated 19-6-1980 which also granted exemption and was similar to Notification No. 71/78 dated 1-3-1978. Clauses (i) and (ii) of Notification No. 80/80 were in the same terms as Clauses (ii) and (III) of Notification No. 71/78. In that case the respondent was manufacturing two types of specified goods and the question was whether such a case would be covered by Clause (ii) of Notification No. 80/80 which was similar to Clause (iii) of Notification No. 71/78. It was held that since the manufacturer was producing two types of specified goods the case would not be covered by Clause (II) and would fall under Clause (i) which dealt specifically with the specified goods. In the present case the respondent-Company was manufacturing specified goods as well as other goods. The present case cannot, therefore, be held to be covered under Clause (ii) of Notification No. 71/78 and has been rightly held to fall under Clause (iii) of the said notification.
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Commissioner of Income Tax, West Bengal, and Another Vs. George Henderson and Company Limited | it sold the shares to Giridharilal Mehta at Rs. 136 per share when the market price of the shares stood at Rs. 620 per share and also why Giridharilal Mehta again sold the shares on the same date at Rs. 100 per share at a loss of Rs. 54, 000, and then again within a few months thereafter, why Jardine Skinner & Co. sold the shares at Rs. 493-10-0 per share. In paragraph 9, the Appellate Tribunal recorded the finding that, prima facie, the transaction was not a bona fide one, and proceeded to say that, " if the assessee refuses to disclose all the facts leading to the transaction and the facts immediately after the transaction, we must hold that it will react to the prejudice of the assessee. " In paragraph 10 the Appellate Tribunal has observed that under section 12B(2) of the Income-tax Act, the Income-tax Officer has to compute the capital gains after making certain deductions from the full value of the consideration for the sale and he, therefore, has a right to know the full value. The Appellate Tribunal added" The assessee cannot shut out the Income-tax Officer from finding out what is the full value of the asset transferred by merely putting a figure on the document of transfer. The Income-tax Officer in this case took the value to be the market price of the shares. There is no dispute that the market price of the shares was Rs. 620 per share. We cannot say therefore, that in the circumstances the Income-tax Officer was in any way wrong in determining the full value of the shares. " 6. In paragraph 11, the Appellate Tribunal held that the first proviso to section 12B(2) did not apply to the case and the sale was not effected with the object of avoidance or reduction of the liability of the assessee under that section, and then observed as follows: " But the right of the Income-tax Officer to determine the full value of the assets is always there specially in a case where the assessee refuses to give all the information to the Income-tax Officer and the value of the assets given by him is so suspiciously low. We, therefore, think there is no substance in the points raised by Mr. Issac. " 7. It was contended by Mr. Asoke Sen on behalf of the respondent that there was no express finding of the Appellate Tribunal that the respondent actually sold the shares at the market price of Rs. 620 per share and that the respondent received that market price of the shares as consideration for the transfer. Reference was made to paragraph 7 of the order of the Appellate Tribunal wherein there is an express finding that the shares were transferred by the respondent to Giridharilal Mehta on April 1, 1946, at the book value of Rs. 136 per share, though the market value on that date was Rs. 620 per share. Mr. Asoke Sen further submitted that it could not be argued from paragraphs, 8 to 11 of the order of the Appellate Tribunal that there was an inferential finding that the shares were actually so at Rs. 620 per share by the respondent. On behalf of the appellants Mr. Narsaraju pointed out that in the statement of the case dated July 29, 1952, the Appellate Tribunal has said that by the previous order dated August 23, 1951, the Appellate Tribunal had come to the conclusion that the sale had been effected at Rs. 620 per share and that the market price of the shares must have been paid. It was, however, pointed out on behalf of the respondent that the statement of the case was not an agreed statement and that it was drawn up by the Appellate Tribunal whose constitution was different from that of the Appellate Tribunal which made the order dated August 23, 1951. It is true that the court is bound to proceed normally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of the Appellate Tribunal which has been made part of the case, the court is entitled to look at the order itself in order to satisfy itself what was actually the finding of the Appellate TribunalAfter having heard counsel for both the parties and having scrutinized the order of the Appellate Tribunal dated August 23, 1961, and the statement of the case dated July 29, 1952, we have reached the conclusion that the question of law referred to the High Court cannot be answered as the language used by the Appellate Tribunal in recording its finding as to the actual contract price paid to the respondent by Giridharilal Mehta for the sale of 1, 500 shares is obscure and its import cannot be determined. In these circumstances we consider that the best course is for the Appellate Tribunal to rehear the appeal and record a clear finding after hearing the parties and after giving an opportunity to the respondent to explain the unusual nature of the transaction and the conduct of the parties concerned therein. After recording a clear finding as to what was the actual price received by the respondent for the sale of shares to Giridharilal Mehta the Appellate Tribunal will finally dispose of the appeal. On behalf of the respondent Mr. Asoke Sen said that his client will give a proper explanation of the transactions and of the conduct of the parties involved before the Appellate Tribunal at the time of the further hearing of the appeal. If the assessee gives explanation of the transaction the Tribunal will be entitled to call upon it to produce documentary or other evidence in support of the explanation. The Tribunal will also be entitled to call for elucidation of the explanation or the evidence. The appellants will be entitled to give evidence in rebuttal | 1[ds]We are unable to accept this contention as correct. It is manifest that the consideration for the transfer of capital asset is what the transferor receives in lieu of the asset he parts with, namely, money or moneys worth and, therefore, the very asset transferred orh cannot be the consideration for the transfer. It follows that the expression "full consideration" in the main part of section 12B(2) cannot be construed as having a reference to the market value of the asset transferred but the expression only means the full value of the thing received by the transferor in exchange for the capital asset transferred by him. The consideration for the transfer is the thing received by the transferor in exchange for the asset transferred and it is not right to say that the asset transferred and parted with is itself the consideration for the transferThe view that we have expressed as to the interpretation of the main part of section 12B(2) is borne out by the fact that in the first proviso to section 12B(2) the expression " full value of the consideration " is used in contradistinction with " fair market value of the capital asset " and there is an express power granted to thex Officer to " take the air market value of the capital asset transferred " as " the full value of the consideration " in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions " full value of the consideration " and " fair market value of the capital asset transferred " and it is provided that if certain conditions are satisfied as mentioned in the first proviso to section 12B(2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration.It is true that the court is bound to proceed normally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of the Appellate Tribunal which has been made part of the case, the court is entitled to look at the order itself in order to satisfy itself what was actually the finding of the Appellate TribunalAfter having heard counsel for both the parties and having scrutinized the order of the Appellate Tribunal dated August 23, 1961, and the statement of the case dated July 29, 1952, we have reached the conclusion that the question of law referred to the High Court cannot be answered as the language used by the Appellate Tribunal in recording its finding as to the actual contract price paid to the respondent by Giridharilal Mehta for the sale of 1, 500 shares is obscure and its import cannot be determined. In these circumstances we consider that the best course is for the Appellate Tribunal to rehear the appeal and record a clear finding after hearing the parties and after giving an opportunity to the respondent to explain the unusual nature of the transaction and the conduct of the parties concerned therein. After recording a clear finding as to what was the actual price received by the respondent for the sale of shares to Giridharilal Mehta the Appellate Tribunal will finally dispose of the appeal. On behalf of the respondent Mr. Asoke Sen said that his client will give a proper explanation of the transactions and of the conduct of the parties involved before the Appellate Tribunal at the time of the further hearing of the appeal. If the assessee gives explanation of the transaction the Tribunal will be entitled to call upon it to produce documentary or other evidence in support of the explanation. The Tribunal will also be entitled to call for elucidation of the explanation or the evidence. The appellants will be entitled to give evidence in rebuttal | 1 | 3,764 | 709 | ### 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 sold the shares to Giridharilal Mehta at Rs. 136 per share when the market price of the shares stood at Rs. 620 per share and also why Giridharilal Mehta again sold the shares on the same date at Rs. 100 per share at a loss of Rs. 54, 000, and then again within a few months thereafter, why Jardine Skinner & Co. sold the shares at Rs. 493-10-0 per share. In paragraph 9, the Appellate Tribunal recorded the finding that, prima facie, the transaction was not a bona fide one, and proceeded to say that, " if the assessee refuses to disclose all the facts leading to the transaction and the facts immediately after the transaction, we must hold that it will react to the prejudice of the assessee. " In paragraph 10 the Appellate Tribunal has observed that under section 12B(2) of the Income-tax Act, the Income-tax Officer has to compute the capital gains after making certain deductions from the full value of the consideration for the sale and he, therefore, has a right to know the full value. The Appellate Tribunal added" The assessee cannot shut out the Income-tax Officer from finding out what is the full value of the asset transferred by merely putting a figure on the document of transfer. The Income-tax Officer in this case took the value to be the market price of the shares. There is no dispute that the market price of the shares was Rs. 620 per share. We cannot say therefore, that in the circumstances the Income-tax Officer was in any way wrong in determining the full value of the shares. " 6. In paragraph 11, the Appellate Tribunal held that the first proviso to section 12B(2) did not apply to the case and the sale was not effected with the object of avoidance or reduction of the liability of the assessee under that section, and then observed as follows: " But the right of the Income-tax Officer to determine the full value of the assets is always there specially in a case where the assessee refuses to give all the information to the Income-tax Officer and the value of the assets given by him is so suspiciously low. We, therefore, think there is no substance in the points raised by Mr. Issac. " 7. It was contended by Mr. Asoke Sen on behalf of the respondent that there was no express finding of the Appellate Tribunal that the respondent actually sold the shares at the market price of Rs. 620 per share and that the respondent received that market price of the shares as consideration for the transfer. Reference was made to paragraph 7 of the order of the Appellate Tribunal wherein there is an express finding that the shares were transferred by the respondent to Giridharilal Mehta on April 1, 1946, at the book value of Rs. 136 per share, though the market value on that date was Rs. 620 per share. Mr. Asoke Sen further submitted that it could not be argued from paragraphs, 8 to 11 of the order of the Appellate Tribunal that there was an inferential finding that the shares were actually so at Rs. 620 per share by the respondent. On behalf of the appellants Mr. Narsaraju pointed out that in the statement of the case dated July 29, 1952, the Appellate Tribunal has said that by the previous order dated August 23, 1951, the Appellate Tribunal had come to the conclusion that the sale had been effected at Rs. 620 per share and that the market price of the shares must have been paid. It was, however, pointed out on behalf of the respondent that the statement of the case was not an agreed statement and that it was drawn up by the Appellate Tribunal whose constitution was different from that of the Appellate Tribunal which made the order dated August 23, 1951. It is true that the court is bound to proceed normally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of the Appellate Tribunal which has been made part of the case, the court is entitled to look at the order itself in order to satisfy itself what was actually the finding of the Appellate TribunalAfter having heard counsel for both the parties and having scrutinized the order of the Appellate Tribunal dated August 23, 1961, and the statement of the case dated July 29, 1952, we have reached the conclusion that the question of law referred to the High Court cannot be answered as the language used by the Appellate Tribunal in recording its finding as to the actual contract price paid to the respondent by Giridharilal Mehta for the sale of 1, 500 shares is obscure and its import cannot be determined. In these circumstances we consider that the best course is for the Appellate Tribunal to rehear the appeal and record a clear finding after hearing the parties and after giving an opportunity to the respondent to explain the unusual nature of the transaction and the conduct of the parties concerned therein. After recording a clear finding as to what was the actual price received by the respondent for the sale of shares to Giridharilal Mehta the Appellate Tribunal will finally dispose of the appeal. On behalf of the respondent Mr. Asoke Sen said that his client will give a proper explanation of the transactions and of the conduct of the parties involved before the Appellate Tribunal at the time of the further hearing of the appeal. If the assessee gives explanation of the transaction the Tribunal will be entitled to call upon it to produce documentary or other evidence in support of the explanation. The Tribunal will also be entitled to call for elucidation of the explanation or the evidence. The appellants will be entitled to give evidence in rebuttal
### Response:
1
### Explanation:
We are unable to accept this contention as correct. It is manifest that the consideration for the transfer of capital asset is what the transferor receives in lieu of the asset he parts with, namely, money or moneys worth and, therefore, the very asset transferred orh cannot be the consideration for the transfer. It follows that the expression "full consideration" in the main part of section 12B(2) cannot be construed as having a reference to the market value of the asset transferred but the expression only means the full value of the thing received by the transferor in exchange for the capital asset transferred by him. The consideration for the transfer is the thing received by the transferor in exchange for the asset transferred and it is not right to say that the asset transferred and parted with is itself the consideration for the transferThe view that we have expressed as to the interpretation of the main part of section 12B(2) is borne out by the fact that in the first proviso to section 12B(2) the expression " full value of the consideration " is used in contradistinction with " fair market value of the capital asset " and there is an express power granted to thex Officer to " take the air market value of the capital asset transferred " as " the full value of the consideration " in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions " full value of the consideration " and " fair market value of the capital asset transferred " and it is provided that if certain conditions are satisfied as mentioned in the first proviso to section 12B(2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration.It is true that the court is bound to proceed normally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of the Appellate Tribunal which has been made part of the case, the court is entitled to look at the order itself in order to satisfy itself what was actually the finding of the Appellate TribunalAfter having heard counsel for both the parties and having scrutinized the order of the Appellate Tribunal dated August 23, 1961, and the statement of the case dated July 29, 1952, we have reached the conclusion that the question of law referred to the High Court cannot be answered as the language used by the Appellate Tribunal in recording its finding as to the actual contract price paid to the respondent by Giridharilal Mehta for the sale of 1, 500 shares is obscure and its import cannot be determined. In these circumstances we consider that the best course is for the Appellate Tribunal to rehear the appeal and record a clear finding after hearing the parties and after giving an opportunity to the respondent to explain the unusual nature of the transaction and the conduct of the parties concerned therein. After recording a clear finding as to what was the actual price received by the respondent for the sale of shares to Giridharilal Mehta the Appellate Tribunal will finally dispose of the appeal. On behalf of the respondent Mr. Asoke Sen said that his client will give a proper explanation of the transactions and of the conduct of the parties involved before the Appellate Tribunal at the time of the further hearing of the appeal. If the assessee gives explanation of the transaction the Tribunal will be entitled to call upon it to produce documentary or other evidence in support of the explanation. The Tribunal will also be entitled to call for elucidation of the explanation or the evidence. The appellants will be entitled to give evidence in rebuttal
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Dredging Corp.Of India Ltd Vs. P.K.Bhattacherjee | Vikramajit Sen, J. CIVIL APPEAL NO. 8278 OF 2013 [Arising out of S.L.P.(C)No.26414 of 2011] 1. Leave granted. We have heard learned counsel for the parties in detail. The Commissioner, Workmen?s Compensation (1st Court), West Bengal held on 24.6.2010 that the Applicant/Respondent had met with an accident on 27.12.1999 while in the employment of the Appellant and that considering his age, wages and injury he was entitled to compensation computed at Rs.12,00,000/- (Rupees Twelve Lac) which is the maximum awardable, together with simple interest at the rate of twelve per cent per annum till the date of realization. The Appellant thereafter approached the High Court of Calcutta but without success as the Division Bench, by its judgment dated 12.8.2011, has dismissed the Appeal. It held that the Respondent, at the concerned time, was on duty on Board on one of the Appellant?s vessels and that ?this would mean that he was on duty, any affliction or injury during such time would come within the ambit of Section 3 of the Employee?s Compensation Act, 1923 (the erstwhile Workmen?s Compensation Act, 1923, till its amendment by Act 45 of 2009).? It is evident that the Respondent-employee has succeeded concurrently both on facts as well as on law. 2. Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the Appellant has laid emphasis on the fact that the Respondent/Claimant was diagnosed immediately after 27.12.1999 to be suffering an ischemic heart ailment, rendering it legally impermissible for the Appellant-company to continue any further with his services. His argument is that this health malady has not arisen as a consequence of the Respondent?s services with the Appellant, and hence no compensation was payable under Section 3 of the Employee?s Compensation Act, 1923 which comes into operation only in the event of an employee suffering personal injury caused by an accident arising out of and in the course of his employment. The contention on behalf of the Appellant-company is that an ischemic heart condition is personal to the constitution of the Respondent, totally unrelated to his service. Although ordinarily we would be loathe to peruse the evidence led by the parties especially encountering concurrent conclusions, we have done so in the present case. The Employee?s Compensation Act is intended for the benefit of an employee, and quintessentially is a no-fault liability. It appears to us that both the Courts below have misdirected themselves in law in that because the illness of the employee was discovered while he was in actual service it has led them to the conclusion that compensation is payable under Section 3 of the Employee?s Compensation Act, 1923. We are also mindful of the fact that the Commissioner, being the Court of first instance, has held that he met with an accident on 27.12.1999, and that he suffered 100% loss of earning capacity as he was permanently unfit for sea-service. It ought to have distinguished between the discovery of the health condition while in service and the health condition having occurred during service. So far as the arguments of the Company are concerned, especially in the Appeals filed assailing the decision of the Commissioner, the emphasis has been that the ischemic heart condition of the employee discovered while he was actually serving with the Appellant, was not related to his service. The learned Commissioner ought to have satisfied himself fully on this aspect of the case rather than come to a conclusion that an accident had occurred, for which the evidence is extremely scanty. Faced with this predicament, Mr. Rana Mukherjee, learned counsel appearing for the employee has endeavoured to establish that an ischemic heart condition can result from job stress which was continuously encountered by the employee. 3. For these reasons, it appears to us to be expedient and just to set aside the impugned order as well as the order of the Commissioner and remand the matter back to the Court of the Commissioner for fresh adjudication de novo. It would then be advisable that a specific issue be struck as to whether the employee?s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. There can be no gainsaying that the Employee?s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee?s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen?s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013. | 1[ds]3. For these reasons, it appears to us to be expedient and just to set aside the impugned order as well as the order of the Commissioner and remand the matter back to the Court of the Commissioner for fresh adjudication de novo. It would then be advisable that a specific issue be struck as to whether the employee?s ischemic heart condition developed as a consequence of any stress or strain of his employment with theThere can be no gainsaying that the Employee?s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee?s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen?s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013. | 1 | 854 | 156 | ### 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:
Vikramajit Sen, J. CIVIL APPEAL NO. 8278 OF 2013 [Arising out of S.L.P.(C)No.26414 of 2011] 1. Leave granted. We have heard learned counsel for the parties in detail. The Commissioner, Workmen?s Compensation (1st Court), West Bengal held on 24.6.2010 that the Applicant/Respondent had met with an accident on 27.12.1999 while in the employment of the Appellant and that considering his age, wages and injury he was entitled to compensation computed at Rs.12,00,000/- (Rupees Twelve Lac) which is the maximum awardable, together with simple interest at the rate of twelve per cent per annum till the date of realization. The Appellant thereafter approached the High Court of Calcutta but without success as the Division Bench, by its judgment dated 12.8.2011, has dismissed the Appeal. It held that the Respondent, at the concerned time, was on duty on Board on one of the Appellant?s vessels and that ?this would mean that he was on duty, any affliction or injury during such time would come within the ambit of Section 3 of the Employee?s Compensation Act, 1923 (the erstwhile Workmen?s Compensation Act, 1923, till its amendment by Act 45 of 2009).? It is evident that the Respondent-employee has succeeded concurrently both on facts as well as on law. 2. Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the Appellant has laid emphasis on the fact that the Respondent/Claimant was diagnosed immediately after 27.12.1999 to be suffering an ischemic heart ailment, rendering it legally impermissible for the Appellant-company to continue any further with his services. His argument is that this health malady has not arisen as a consequence of the Respondent?s services with the Appellant, and hence no compensation was payable under Section 3 of the Employee?s Compensation Act, 1923 which comes into operation only in the event of an employee suffering personal injury caused by an accident arising out of and in the course of his employment. The contention on behalf of the Appellant-company is that an ischemic heart condition is personal to the constitution of the Respondent, totally unrelated to his service. Although ordinarily we would be loathe to peruse the evidence led by the parties especially encountering concurrent conclusions, we have done so in the present case. The Employee?s Compensation Act is intended for the benefit of an employee, and quintessentially is a no-fault liability. It appears to us that both the Courts below have misdirected themselves in law in that because the illness of the employee was discovered while he was in actual service it has led them to the conclusion that compensation is payable under Section 3 of the Employee?s Compensation Act, 1923. We are also mindful of the fact that the Commissioner, being the Court of first instance, has held that he met with an accident on 27.12.1999, and that he suffered 100% loss of earning capacity as he was permanently unfit for sea-service. It ought to have distinguished between the discovery of the health condition while in service and the health condition having occurred during service. So far as the arguments of the Company are concerned, especially in the Appeals filed assailing the decision of the Commissioner, the emphasis has been that the ischemic heart condition of the employee discovered while he was actually serving with the Appellant, was not related to his service. The learned Commissioner ought to have satisfied himself fully on this aspect of the case rather than come to a conclusion that an accident had occurred, for which the evidence is extremely scanty. Faced with this predicament, Mr. Rana Mukherjee, learned counsel appearing for the employee has endeavoured to establish that an ischemic heart condition can result from job stress which was continuously encountered by the employee. 3. For these reasons, it appears to us to be expedient and just to set aside the impugned order as well as the order of the Commissioner and remand the matter back to the Court of the Commissioner for fresh adjudication de novo. It would then be advisable that a specific issue be struck as to whether the employee?s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. There can be no gainsaying that the Employee?s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee?s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen?s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013.
### Response:
1
### Explanation:
3. For these reasons, it appears to us to be expedient and just to set aside the impugned order as well as the order of the Commissioner and remand the matter back to the Court of the Commissioner for fresh adjudication de novo. It would then be advisable that a specific issue be struck as to whether the employee?s ischemic heart condition developed as a consequence of any stress or strain of his employment with theThere can be no gainsaying that the Employee?s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee?s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen?s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013.
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State of Rajasthan Vs. Kashi Ram | that the respondent made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer.26. It was then submitted on behalf of the respondent that the neighbourers who had stated that they had seen the respondent and deceased Kalawati on the evening of February 3, 1998 were not examined by the prosecution. In view of the evidence of PW-2, Mamraj who proved this fact, the non-examination of those witnesses does not have any adverse effect on the case of the prosecution. It was also submitted that there is no evidence to show that the respondent No. 1 was absconding after the occurrence. From the facts proved on record it is established that on February 4, 1998 the house was found locked. The same was the position on February 5, 1998. when PW-5, Jai Kauri, mother of deceased Kalawati visited the house of her daughter and found the house locked. Finding the house also locked on February 6, 1998, she became anxious to know about the welfare of her daughter and, therefore, she went to the informant, PW-6 and requested him to find out the whereabouts of her daughter Kalawati and members of her family. These facts clearly prove that while the doors of the house of the respondent were locked, he was nowhere on the scene. The fact that PWs 1 and 6 went in search of the respondent and the deceased and their children, and were informed by the respondent’s brother that he may have gone to Suratgarh fair, also points in the same direction. Obviously, therefore he was absconding after commission of the offence. In fact, he never appeared on the scene till his arrest on February 17, 1998. There is, therefore, abundant evidence to prove that the respondent was traceless between February 4, 1998 and February 17, 1998. Reliance placed by Counsel on the decision of this Court in P. Mani v. State of Tamil Nadu, II (2006) SLT 438=IV (2006) CCR 241 (SC)=(2006) 3 SCC 161 , is of no avail in the facts and circumstances of this case.27. It was lastly submitted that in his examination under Section 313, Cr.P.C. though the circumstance regarding his having been seen on the evening by his neighbourers on February 3, 1998 was put to the respondent accused, the name of PW-2 was not mentioned as a person who had also seen him on that day with the deceased. The fact remains that the incriminating circumstance was put to the accused and his response was a bald denial. We do not find that any prejudice was caused to the respondent by not mentioning the name of PW-2, when the incriminating circumstance appearing against him was put to him. 28. In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial. 29. The following incriminating circumstances are clearly established against the respondent: (a) That he was not on cordial terms with his wife Kalawati.(b) On the evening of February 3, 1998 he was seen in his house with his wife Kalawati (deceased).(c) The house of the respondent was found locked on the 4th, 5th and 6th February, 1998.(d) On February 6, 1998 when his house was opened the dead bodies of his wife and daughters were found, and the medical evidence established that they had been strangulated to death, the cause of death being asphyxia.(e) Since the respondent was not traceable the mother of the deceased PW-5, Jai Kauri became anxious to know about their whereabouts and requested PWs 1 and 6 to search for them.(f) In the course of investigation the respondent never appeared at any stage, and for the first time he appeared on the scene when he was arrested on February 17, 1998.(g) Even after his arrest he did not offer any explanation as to when he parted company with his wife nor did he offer any exculpatory explanation to discharge the burden under Section 106 of the Evidence Act. 30. These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted. | 1[ds]15. So far as the recoveries are concerned, the High Court has not accepted the same since PW-6, Inder Bhan admitted in the course of his cross-examination that the waist chord which had been used for strangulating Kalawati was recovered much earlier from the scene of offence by the police itself. Moreover, the waist chord as well as the keys were not even produced before the Court. It may be that some other witnesses have stated that the waist chord was not recovered from the spot, but in the facts of the case the benefit of doubt must go to the accused.16. The most important circumstance that the respondent was last seen with the deceased on February 3, 1998 whereafter he had disappeared and his house was found locked and that he had offered no explanation whatsoever, was disposed of by the High Court in one short paragraph observing that there was nothing unusual if the accused was seen in the company of his own family members in his house. On such reasoning, the High Court held that the circumstantial evidence relied upon by the prosecution was not strong enough to sustain the conviction of the respondent. Accordingly, the High Court allowed the appeals preferred by the respondent and declined the death reference made by the Trial Court for confirmation of the sentence of death.17. We have been taken through the entire evidence on record. The medical evidence on record clearly proves that the death of Kalawati and her two minor daughters was homicidal caused by strangulation. The cause of death was asphyxia. It is also established on record that the deceased was last seen alive in the company of respondent on February 3, 1998 at her house. The prosecution has also successfully established the fact that the house was found locked on the morning of February 4, 1998 and continued to remain locked till it was opened after removing the door on February 6, 1998. Throughout this period the respondent was not to be seen and he was arrested only on February 17, 1998. Neither at the time of his arrest, nor in the course of investigation, nor before the Court, has the respondent given any explanation in defence. He has not even furnished any explanation as to where he was between February 4, 1998 and February 17, 1998. It has been argued on behalf of the prosecution that this most important circumstance has been completely ignored by the High Court. The case of the prosecution substantially rested on this circumstance. The respondent was obliged to furnish some explanation in defence. He could have explained where he was during this period, or he could have furnished any other explanation to prove his innocence. Counsel for the respondent on the other hand, contends that though the respondent furnished no explanation whatsoever, there is evidence on record to prove that he had gone to attend Suratgarh fair with his family members. A question, therefore, arises whether the presumption under Section 106 of the Evidence Act may be drawn against the respondent in the facts of the case, since the facts as to where he was during the relevant period and when he parted company with the deceased, were matters within his special knowledge the burden of proving which was cast upon him by law.It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd., AIR 1960 Madras, 218.In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial.These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted. | 1 | 6,420 | 1,253 | ### 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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that the respondent made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer.26. It was then submitted on behalf of the respondent that the neighbourers who had stated that they had seen the respondent and deceased Kalawati on the evening of February 3, 1998 were not examined by the prosecution. In view of the evidence of PW-2, Mamraj who proved this fact, the non-examination of those witnesses does not have any adverse effect on the case of the prosecution. It was also submitted that there is no evidence to show that the respondent No. 1 was absconding after the occurrence. From the facts proved on record it is established that on February 4, 1998 the house was found locked. The same was the position on February 5, 1998. when PW-5, Jai Kauri, mother of deceased Kalawati visited the house of her daughter and found the house locked. Finding the house also locked on February 6, 1998, she became anxious to know about the welfare of her daughter and, therefore, she went to the informant, PW-6 and requested him to find out the whereabouts of her daughter Kalawati and members of her family. These facts clearly prove that while the doors of the house of the respondent were locked, he was nowhere on the scene. The fact that PWs 1 and 6 went in search of the respondent and the deceased and their children, and were informed by the respondent’s brother that he may have gone to Suratgarh fair, also points in the same direction. Obviously, therefore he was absconding after commission of the offence. In fact, he never appeared on the scene till his arrest on February 17, 1998. There is, therefore, abundant evidence to prove that the respondent was traceless between February 4, 1998 and February 17, 1998. Reliance placed by Counsel on the decision of this Court in P. Mani v. State of Tamil Nadu, II (2006) SLT 438=IV (2006) CCR 241 (SC)=(2006) 3 SCC 161 , is of no avail in the facts and circumstances of this case.27. It was lastly submitted that in his examination under Section 313, Cr.P.C. though the circumstance regarding his having been seen on the evening by his neighbourers on February 3, 1998 was put to the respondent accused, the name of PW-2 was not mentioned as a person who had also seen him on that day with the deceased. The fact remains that the incriminating circumstance was put to the accused and his response was a bald denial. We do not find that any prejudice was caused to the respondent by not mentioning the name of PW-2, when the incriminating circumstance appearing against him was put to him. 28. In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial. 29. The following incriminating circumstances are clearly established against the respondent: (a) That he was not on cordial terms with his wife Kalawati.(b) On the evening of February 3, 1998 he was seen in his house with his wife Kalawati (deceased).(c) The house of the respondent was found locked on the 4th, 5th and 6th February, 1998.(d) On February 6, 1998 when his house was opened the dead bodies of his wife and daughters were found, and the medical evidence established that they had been strangulated to death, the cause of death being asphyxia.(e) Since the respondent was not traceable the mother of the deceased PW-5, Jai Kauri became anxious to know about their whereabouts and requested PWs 1 and 6 to search for them.(f) In the course of investigation the respondent never appeared at any stage, and for the first time he appeared on the scene when he was arrested on February 17, 1998.(g) Even after his arrest he did not offer any explanation as to when he parted company with his wife nor did he offer any exculpatory explanation to discharge the burden under Section 106 of the Evidence Act. 30. These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted.
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seen in the company of his own family members in his house. On such reasoning, the High Court held that the circumstantial evidence relied upon by the prosecution was not strong enough to sustain the conviction of the respondent. Accordingly, the High Court allowed the appeals preferred by the respondent and declined the death reference made by the Trial Court for confirmation of the sentence of death.17. We have been taken through the entire evidence on record. The medical evidence on record clearly proves that the death of Kalawati and her two minor daughters was homicidal caused by strangulation. The cause of death was asphyxia. It is also established on record that the deceased was last seen alive in the company of respondent on February 3, 1998 at her house. The prosecution has also successfully established the fact that the house was found locked on the morning of February 4, 1998 and continued to remain locked till it was opened after removing the door on February 6, 1998. Throughout this period the respondent was not to be seen and he was arrested only on February 17, 1998. Neither at the time of his arrest, nor in the course of investigation, nor before the Court, has the respondent given any explanation in defence. He has not even furnished any explanation as to where he was between February 4, 1998 and February 17, 1998. It has been argued on behalf of the prosecution that this most important circumstance has been completely ignored by the High Court. The case of the prosecution substantially rested on this circumstance. The respondent was obliged to furnish some explanation in defence. He could have explained where he was during this period, or he could have furnished any other explanation to prove his innocence. Counsel for the respondent on the other hand, contends that though the respondent furnished no explanation whatsoever, there is evidence on record to prove that he had gone to attend Suratgarh fair with his family members. A question, therefore, arises whether the presumption under Section 106 of the Evidence Act may be drawn against the respondent in the facts of the case, since the facts as to where he was during the relevant period and when he parted company with the deceased, were matters within his special knowledge the burden of proving which was cast upon him by law.It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd., AIR 1960 Madras, 218.In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial.These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted.
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Nandlal And Others Vs. Moti Lal | SHINGHAL J.1. In this appeal by special leave against the judgment of the Bombay High Court (Nagpur Bench) dated December 16, 1974, the only question which has been raised for our consideration is whether the provisions of clause 13 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, hereinafter referred to as the Rent Control Order, were applicable- to the plaintiff respondents suit for the eviction of the defendants appellants from the house and iota situated in Thiroda. That clause forms part of Chapter 11 and prohibits the determining of a lease without the previous written permission of the Controller.2. The Rent Control Order was issued on July 26, 1949. The State Government issued, at the same time, a notification under section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946, hereinafter referred to as the Act, directing, inter alia, that Chapter I of the Rent Control Order shall extend to the whole of the Central Provinces and Berar (and the States integrated with the Central Provinces and Berar), and Chapter 11 and IV shall extend to, -"(a) All the Municipalities in the Central Provinces and Berar and the States integrated with the Central Provinces and Berar."The area of Tiroda was declared to be a Municipality by a notification dated June 12, 1956, and was not a Municipality when the aforesaid notification was issued under section 2 of the Act.3. The plaintiff raised a suit for the eviction of the defendants from the suit premises on May 2, 1963, without obtaining the Controllers permission under clause 13 of the Rent Control Order. The short point of controversy is whether the notification dated June 12, 1956 declaring Tiroda to be a Municipality could attract the provisions of the Rent Control Order by virtue of the notification dated July 26, 1949. The High Court has taken the view that as a fresh notification was not issued under section 2 of the Act when the Tiroda Municipality was constituted on June, 12, 1956, the provisions of the Rent Control Order did not "automatically become applicable to premises within the limits of a new Municipality by virtue of the notification of 1949".The validity of the notification which was issued on July 26, 1949, under section 2 of the Act, has not been challenged before us, so that there can be no doubt that while Chapter I became applicable to the whole of the Central Provinces and Berar and the integrated States, Chapters II and IV became applicable to all Municipalities in that State with effect from that date. Tiroda was not a Municipality at that time and did not come within the purview of the notification. But it became a Municipality on June 12, 1956 and the notification became applicable to it from that date. We therefore see no justification for the argument that the notification was confined to those Municipalities which were in existence on July 26, 19 49, and that a fresh notification was necessary to extend the benefit of the Rent Control Order to a subsequently constituted Municipality. There is nothing in the wordings of the notification to justify any such argument. On the other hand, the wordings of the notification are quite unambiguous and there is no reason why they should not be given their simple and natural meaning. They clearly provide that Chapters 11 and IV of the Rent Control Order extend to "all t he Municipalities" in the State. As Tiroda was constituted as a Municipality on June 12, 1956, the provisions of those chapters became applicable to it from that date. We are unable to agree with the view taken by the High Court that the protection of Clause 13 of the Rent Control Order was not available to the appellants. | 0[ds]The High Court has taken the view that as a fresh notification was not issued under section 2 of the Act when the Tiroda Municipality was constituted on June, 12, 1956, the provisions of the Rent Control Order did not "automatically become applicable to premises within the limits of a new Municipality by virtue of the notification of 1949".The validity of the notification which was issued on July 26, 1949, under section 2 of the Act, has not been challenged before us, so that there can be no doubt that while Chapter I became applicable to the whole of the Central Provinces and Berar and the integrated States, Chapters II and IV became applicable to all Municipalities in that State with effect from that date. Tiroda was not a Municipality at that time and did not come within the purview of the notification. But it became a Municipality on June 12, 1956 and the notification became applicable to it from that date. We therefore see no justification for the argument that the notification was confined to those Municipalities which were in existence on July 26, 19 49, and that a fresh notification was necessary to extend the benefit of the Rent Control Order to a subsequently constituted Municipality. There is nothing in the wordings of the notification to justify any such argument. On the other hand, the wordings of the notification are quite unambiguous and there is no reason why they should not be given their simple and natural meaning. They clearly provide that Chapters 11 and IV of the Rent Control Order extend to "all t he Municipalities" in the State. As Tiroda was constituted as a Municipality on June 12, 1956, the provisions of those chapters became applicable to it from that date. We are unable to agree with the view taken by the High Court that the protection of Clause 13 of the Rent Control Order was not available to the appellants. | 0 | 701 | 357 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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SHINGHAL J.1. In this appeal by special leave against the judgment of the Bombay High Court (Nagpur Bench) dated December 16, 1974, the only question which has been raised for our consideration is whether the provisions of clause 13 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, hereinafter referred to as the Rent Control Order, were applicable- to the plaintiff respondents suit for the eviction of the defendants appellants from the house and iota situated in Thiroda. That clause forms part of Chapter 11 and prohibits the determining of a lease without the previous written permission of the Controller.2. The Rent Control Order was issued on July 26, 1949. The State Government issued, at the same time, a notification under section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946, hereinafter referred to as the Act, directing, inter alia, that Chapter I of the Rent Control Order shall extend to the whole of the Central Provinces and Berar (and the States integrated with the Central Provinces and Berar), and Chapter 11 and IV shall extend to, -"(a) All the Municipalities in the Central Provinces and Berar and the States integrated with the Central Provinces and Berar."The area of Tiroda was declared to be a Municipality by a notification dated June 12, 1956, and was not a Municipality when the aforesaid notification was issued under section 2 of the Act.3. The plaintiff raised a suit for the eviction of the defendants from the suit premises on May 2, 1963, without obtaining the Controllers permission under clause 13 of the Rent Control Order. The short point of controversy is whether the notification dated June 12, 1956 declaring Tiroda to be a Municipality could attract the provisions of the Rent Control Order by virtue of the notification dated July 26, 1949. The High Court has taken the view that as a fresh notification was not issued under section 2 of the Act when the Tiroda Municipality was constituted on June, 12, 1956, the provisions of the Rent Control Order did not "automatically become applicable to premises within the limits of a new Municipality by virtue of the notification of 1949".The validity of the notification which was issued on July 26, 1949, under section 2 of the Act, has not been challenged before us, so that there can be no doubt that while Chapter I became applicable to the whole of the Central Provinces and Berar and the integrated States, Chapters II and IV became applicable to all Municipalities in that State with effect from that date. Tiroda was not a Municipality at that time and did not come within the purview of the notification. But it became a Municipality on June 12, 1956 and the notification became applicable to it from that date. We therefore see no justification for the argument that the notification was confined to those Municipalities which were in existence on July 26, 19 49, and that a fresh notification was necessary to extend the benefit of the Rent Control Order to a subsequently constituted Municipality. There is nothing in the wordings of the notification to justify any such argument. On the other hand, the wordings of the notification are quite unambiguous and there is no reason why they should not be given their simple and natural meaning. They clearly provide that Chapters 11 and IV of the Rent Control Order extend to "all t he Municipalities" in the State. As Tiroda was constituted as a Municipality on June 12, 1956, the provisions of those chapters became applicable to it from that date. We are unable to agree with the view taken by the High Court that the protection of Clause 13 of the Rent Control Order was not available to the appellants.
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The High Court has taken the view that as a fresh notification was not issued under section 2 of the Act when the Tiroda Municipality was constituted on June, 12, 1956, the provisions of the Rent Control Order did not "automatically become applicable to premises within the limits of a new Municipality by virtue of the notification of 1949".The validity of the notification which was issued on July 26, 1949, under section 2 of the Act, has not been challenged before us, so that there can be no doubt that while Chapter I became applicable to the whole of the Central Provinces and Berar and the integrated States, Chapters II and IV became applicable to all Municipalities in that State with effect from that date. Tiroda was not a Municipality at that time and did not come within the purview of the notification. But it became a Municipality on June 12, 1956 and the notification became applicable to it from that date. We therefore see no justification for the argument that the notification was confined to those Municipalities which were in existence on July 26, 19 49, and that a fresh notification was necessary to extend the benefit of the Rent Control Order to a subsequently constituted Municipality. There is nothing in the wordings of the notification to justify any such argument. On the other hand, the wordings of the notification are quite unambiguous and there is no reason why they should not be given their simple and natural meaning. They clearly provide that Chapters 11 and IV of the Rent Control Order extend to "all t he Municipalities" in the State. As Tiroda was constituted as a Municipality on June 12, 1956, the provisions of those chapters became applicable to it from that date. We are unable to agree with the view taken by the High Court that the protection of Clause 13 of the Rent Control Order was not available to the appellants.
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The Commissioner Of Gift-Tax, Kerala Vs. Dr. George Kuruvilla | Shah, J.1. By our order dated 1-1-1969, we directed the Income-tax Appellate Tribunal to submit a supplementary statement of the case together with a copy of the deed of gift dated February 3, 1960 executed by the respondent. The Tribunal has submitted the supplementary statement of the case together with a copy of the deed of gift executed by the respondent on February 3, 1960.2. The respondent is a medical practitioner. By the deed dated February 3, 1960 he has given to his son Thomas four items of property: (1) one-fifth share in cardamom estate valued at Rs. 3,030.80; (2) 1.38 cents of garden land valued at Rs. 4,500; (3) G. K. Hospital Building erected on the garden land valued at Rs. 17,250; and (4) Othi rights valued at Rs. 6,000.3. In response to a notice under Section 13(2) of the Gift Tax Act 18 of 1958 the assessee filed a return for the assessment year 1960-61 disclosing taxable gifts of property valued at Rupees 27,251. But he claimed exemption in respect of Item No. (2), i. e. the garden land. In the course of the hearing the respondent claimed that the G. K. Hospital Building Item No. (3) was also exempt from liability to gift-tax because of Section 5(1)(xiv) of the Gift-tax Act. It was the case of the respondent that his son Thomas had graduated in the medical science at an examination held in December 1959 and had joined the respondents profession as a House Surgeon in July 1960, and on the account the gift in respect of Items (2) and (3) were exempt from liability to tax. The Gift-tax Officer rejected the claim. The Appellate Assistant Commissioner confirmed the order of the Gift tax Officer. The Appellate Tribunal held that the respondent was entitled to exemption in respect of Items (2) and (3).4. At the instance of the Commissioner of Gift Tax, the Tribunal referred the following question to the High Court of Kerala for opinion :"Whether on the facts and in the circumstances of the case, the assessee was entitled to the exemption in respect of G. K. Hospital and the adjoining land of 1.38 cents under Section 5 (1) (xiv) of the Gift Tax Act?"The High Court answered the question in the affirmative. The Commissioner of Gift Tax Kerala, has appealed to this Court.5. Section 5 of the Gift Tax Act provides for exemption in respect of certain gifts: insofar as it is relevant it provides :"(1) Gift-tax shall not be charged under this Act in respect of gifts made by any person -x x x x x(xiv) in the course of carrying on a business, profession or vocation, to the extent to which the gift is proved to the satisfaction of the Gift-tax Officer to have been made bona fide for the purpose of such business, profession or vocation."The respondent practices the profession of the medicine. A few months after the deed of gift his son Thomas also qualified to be a medical practitioner. But there is nothing in the deed of gift which even remotely suggests that the gift was made by the respondent in the course of his profession and bona fide for the purpose of carrying on his profession as a practitioner in medicine. The recitals in the deed are clear: it is recited in the deed that the gift was made "out of love and affection". There was no evidence before the taxing authorities that the gift was made to the donee Thomas in the course of carrying on the business by the donor or for the purpose of such business, profession or vocation. The Tribunal observed in paragraph 7 of the judgment :"There is no finding that the assessee has ceased to carry on his profession as a doctor. Therefore, it will be clear that the gift had been made in the course of the carrying on the profession. Now the next condition is that it should have been made for the purpose of the profession. It is not the case of the Department that the gift property had been used for any purpose other what it had been put to while it was with the donor x x x"The High Court observed :"We feel it difficult to resist the conclusion that in the background and circumstances, the gift could well be regarded as having been made for the batter ordering of the business of the assessee. x x x it would be enough to show that the gift was made on grounds of commercial expediency and in order to directly or indirectly facilitate the carrying on of the business, profession or vocation."6.We are unable to agree with the views so expressed. The donor is exempt under Section 5 (1) (xiv) from liability to pay tax only if the gift is in the course of carrying on a business, profession or vocation and is made bona fide for the purpose of such business, profession or vocation. The clause does not enact that gift made by a person carrying on any business is exempt from tax,nor does it provide that a gift is exempt from tax merely because the property is used for the purpose for which it was used by the donor.Without deciding whether the test of "commercial expediency" is strictly appropriate to the claim for exemption under Section 5 (1) (xiv), we are of the view that there is no evidence on the record to prove that the gift to Thomas was "in the course of carrying on the business" of the donor, and "for the purpose of the business". | 1[ds]6.We are unable to agree with the views so expressed. The donor is exempt under Section 5 (1) (xiv) from liability to pay tax only if the gift is in the course of carrying on a business, profession or vocation and is made bona fide for the purpose of such business, profession or vocation. The clause does not enact that gift made by a person carrying on any business is exempt from tax,nor does it provide that a gift is exempt from tax merely because the property is used for the purpose for which it was used by the donor.Without deciding whether the test of "commercial expediency" is strictly appropriate to the claim for exemption under Section 5 (1) (xiv), we are of the view that there is no evidence on the record to prove that the gift to Thomas was "in the course of carrying on the business" of the donor, and "for the purpose of the business". | 1 | 1,067 | 186 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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Shah, J.1. By our order dated 1-1-1969, we directed the Income-tax Appellate Tribunal to submit a supplementary statement of the case together with a copy of the deed of gift dated February 3, 1960 executed by the respondent. The Tribunal has submitted the supplementary statement of the case together with a copy of the deed of gift executed by the respondent on February 3, 1960.2. The respondent is a medical practitioner. By the deed dated February 3, 1960 he has given to his son Thomas four items of property: (1) one-fifth share in cardamom estate valued at Rs. 3,030.80; (2) 1.38 cents of garden land valued at Rs. 4,500; (3) G. K. Hospital Building erected on the garden land valued at Rs. 17,250; and (4) Othi rights valued at Rs. 6,000.3. In response to a notice under Section 13(2) of the Gift Tax Act 18 of 1958 the assessee filed a return for the assessment year 1960-61 disclosing taxable gifts of property valued at Rupees 27,251. But he claimed exemption in respect of Item No. (2), i. e. the garden land. In the course of the hearing the respondent claimed that the G. K. Hospital Building Item No. (3) was also exempt from liability to gift-tax because of Section 5(1)(xiv) of the Gift-tax Act. It was the case of the respondent that his son Thomas had graduated in the medical science at an examination held in December 1959 and had joined the respondents profession as a House Surgeon in July 1960, and on the account the gift in respect of Items (2) and (3) were exempt from liability to tax. The Gift-tax Officer rejected the claim. The Appellate Assistant Commissioner confirmed the order of the Gift tax Officer. The Appellate Tribunal held that the respondent was entitled to exemption in respect of Items (2) and (3).4. At the instance of the Commissioner of Gift Tax, the Tribunal referred the following question to the High Court of Kerala for opinion :"Whether on the facts and in the circumstances of the case, the assessee was entitled to the exemption in respect of G. K. Hospital and the adjoining land of 1.38 cents under Section 5 (1) (xiv) of the Gift Tax Act?"The High Court answered the question in the affirmative. The Commissioner of Gift Tax Kerala, has appealed to this Court.5. Section 5 of the Gift Tax Act provides for exemption in respect of certain gifts: insofar as it is relevant it provides :"(1) Gift-tax shall not be charged under this Act in respect of gifts made by any person -x x x x x(xiv) in the course of carrying on a business, profession or vocation, to the extent to which the gift is proved to the satisfaction of the Gift-tax Officer to have been made bona fide for the purpose of such business, profession or vocation."The respondent practices the profession of the medicine. A few months after the deed of gift his son Thomas also qualified to be a medical practitioner. But there is nothing in the deed of gift which even remotely suggests that the gift was made by the respondent in the course of his profession and bona fide for the purpose of carrying on his profession as a practitioner in medicine. The recitals in the deed are clear: it is recited in the deed that the gift was made "out of love and affection". There was no evidence before the taxing authorities that the gift was made to the donee Thomas in the course of carrying on the business by the donor or for the purpose of such business, profession or vocation. The Tribunal observed in paragraph 7 of the judgment :"There is no finding that the assessee has ceased to carry on his profession as a doctor. Therefore, it will be clear that the gift had been made in the course of the carrying on the profession. Now the next condition is that it should have been made for the purpose of the profession. It is not the case of the Department that the gift property had been used for any purpose other what it had been put to while it was with the donor x x x"The High Court observed :"We feel it difficult to resist the conclusion that in the background and circumstances, the gift could well be regarded as having been made for the batter ordering of the business of the assessee. x x x it would be enough to show that the gift was made on grounds of commercial expediency and in order to directly or indirectly facilitate the carrying on of the business, profession or vocation."6.We are unable to agree with the views so expressed. The donor is exempt under Section 5 (1) (xiv) from liability to pay tax only if the gift is in the course of carrying on a business, profession or vocation and is made bona fide for the purpose of such business, profession or vocation. The clause does not enact that gift made by a person carrying on any business is exempt from tax,nor does it provide that a gift is exempt from tax merely because the property is used for the purpose for which it was used by the donor.Without deciding whether the test of "commercial expediency" is strictly appropriate to the claim for exemption under Section 5 (1) (xiv), we are of the view that there is no evidence on the record to prove that the gift to Thomas was "in the course of carrying on the business" of the donor, and "for the purpose of the business".
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6.We are unable to agree with the views so expressed. The donor is exempt under Section 5 (1) (xiv) from liability to pay tax only if the gift is in the course of carrying on a business, profession or vocation and is made bona fide for the purpose of such business, profession or vocation. The clause does not enact that gift made by a person carrying on any business is exempt from tax,nor does it provide that a gift is exempt from tax merely because the property is used for the purpose for which it was used by the donor.Without deciding whether the test of "commercial expediency" is strictly appropriate to the claim for exemption under Section 5 (1) (xiv), we are of the view that there is no evidence on the record to prove that the gift to Thomas was "in the course of carrying on the business" of the donor, and "for the purpose of the business".
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E.I.D. Parry (India) Ltd Vs. Asst.Comnr. Of Commercial Taxes,Chennai | (1) of Section 24 deals with an assessed tax or tax which has become payable under the Act. In cases covered by Section 13(2) tax must be paid without any notice of demand. But as stated above, under Section 13(2) tax is to be paid "on the basis of such returns". Tax as per the returns has admittedly been paid. If the returns were incomplete or incorrect as now claimed the assessing authority had to determine the tax payable and issue a notice of demand. In the absence of any assessment, even provisional, and a notice of demand no interest would be payable under Section 24(3). In this case, it is an admitted position that as soon as the revised return was filed the Appellants paid the tax as per the revised return. Therefore they paid the tax even before the final assessment took place. Thus the claim for interest, under Section 24(3) from the date that the advances were paid to the sugarcane growers is not sustainable. There is no provision under the Act which permits charging of interest unless and until there has been a provisional assessment and a notice of demand prescribing the period within which the tax was to be paid. 15. Our view finds support from the Constitution Bench decision of this Court in J.K. Synthetics Ltd.s case (supra). It must be mentioned that earlier to J.K. Synthetics Ltd.s case the question whether interest would be payable from the date of return on the footing that the return is an incorrect return had come up for consideration before a three Judge Bench of this Court in the case of Associated Cement Company Ltd. vs. Commercial Tax Officer, Kota reported in 1981(4) SCC 578. There was a difference of opinion. The majority Judgment held that the return must be a true return and if in a final assessment it is held that the return was incorrect or incomplete, then interest would be leviable from the date the incomplete or incorrect return was filed. The minority opinion held that tax was to be paid as per the return and so long as tax was paid as per the return, merely because in the final assessment it was held that the return was incorrect or incomplete interest could not be levied prior to the date of final assessment and the demand thereunder. The majority view was doubted and the question was referred to a Constitution Bench. The Constitution Bench in J.K. Synthetics Ltd.s case accepted the minority view and overruled the majority view. The Constitution Bench held that tax was payable only as per the returns. It is held that if incomplete or incorrect return are filed it was open to the Assessing Officer to provisionally assess and make a demand. It is held that if that was not done then interest could not be levied on the footing that in a final assessment it is found that the returns had been incorrect. 18. The decision in J.K. Synthetics Ltd.s case was thereafter followed by another Constitution Bench in the case of Frick India Ltd.s case (supra). These judgments fully cover the question under consideration. They are not only binding on us but we are in full agreement with the principle laid down therein. 17. Mr. Iyer made an attempt to distinguish the judgments on the ground that the provisions under consideration, in J.K. Synthetics Ltd.s case, are not in pari materia with the provisions of the Tamil Nadu General Sales Tax Act. He submitted that the words "actual turnover" had not been used in the Rajasthan Act. He submitted that under the Tamil Nadu General Sales Tax Act the return has to be as per the actual turnover. In our view, the words actual turnover can have no different meaning from the word turnover. The word turnover has been defined under Section 2(r) to mean the aggregate amount for which the goods are bought and sold. Under Section 13(2) the monthly return has to indicate the actual turnover and tax is then payable as per the return. If the return shows that the actual turnover and tax is not paid as per the return, then interest would be payable under Section 24(3) as that would be a case where amount has remained unpaid after the date specified for its payment. However, if the monthly return does not indicate the actual turnover the it was for the Assessing Authority to make a demand on the footing that the return was incomplete or incorrect. In the absence of any such demand interest would not become payable under Section 24(3) as there is no provision for charging of interest prior to the date of demand. In this respect the principles laid down in J.K. Synthetics Ltd.s case fully apply even though the provisions of the Tamil Nadu General Sales Tax Act and the Rajasthan Act may not be identical. The principle to be kept in mind is, that, when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, be it under Section 215 of the Income Tax Act or under Section 7(2) / 7(2A) read with Section 11B(a) of the Rajasthan Sales Tax Act, 1954 (as discussed in the decision of this Court in the case of J.K. Synthetics Ltd.s case (supra) or under Sections 13(2) / 24(3) read with Rule 18(3) under the Tamil Nadu General Sales Tax Act, 1959, then such a levy is different from the levy of interest which is dependent on the discretion of the Assessing Officer. The default arising on non-payment of tax on an admitted liability in the case of self-assessment falls under Section 24(3) read with Rule 18(3) which attracts automatic levy of interest whereas the default in filing incomplete and incorrect return falls under Rule 18(4) which the levy of interest is based on the adjudication by the Assessing Officer. Therefore, Rule 18(3) and Rule 18(4) operate in different spheres. | 1[ds]11. Thus the Assessment Order levying interest on the entire price fixed under Clause 5-A and the Judgments of the Tribunal and the High Court upholding that are clearly erroneous. As stated above, the price fixed under Clause 5-A would not be known till much later. Thus, it would be impossible to show it in the monthly returns filed earlier. Of course as indicated earlier, Mr. Iyer is right the monthly returns should have included the amounts paid as advance in the turnover15. Our view finds support from the Constitution Bench decision of this Court in J.K. Synthetics Ltd.s case (supra). It must be mentioned that earlier to J.K. Synthetics Ltd.s case the question whether interest would be payable from the date of return on the footing that the return is an incorrect return had come up for consideration before a three Judge Bench of this Court in the case of Associated Cement Company Ltd. vs. Commercial Tax Officer, Kota reported in 1981(4) SCC 578. There was a difference of opinion. The majority Judgment held that the return must be a true return and if in a final assessment it is held that the return was incorrect or incomplete, then interest would be leviable from the date the incomplete or incorrect return was filed. The minority opinion held that tax was to be paid as per the return and so long as tax was paid as per the return, merely because in the final assessment it was held that the return was incorrect or incomplete interest could not be levied prior to the date of final assessment and the demand thereunder. The majority view was doubted and the question was referred to a Constitution Bench. The Constitution Bench in J.K. Synthetics Ltd.s case accepted the minority view and overruled the majority view. The Constitution Bench held that tax was payable only as per the returns. It is held that if incomplete or incorrect return are filed it was open to the Assessing Officer to provisionally assess and make a demand. It is held that if that was not done then interest could not be levied on the footing that in a final assessment it is found that the returns had been incorrect18. The decision in J.K. Synthetics Ltd.s case was thereafter followed by another Constitution Bench in the case of Frick India Ltd.s case (supra). These judgments fully cover the question under consideration. They are not only binding on us but we are in full agreement with the principle laid down therein. In our view,the words actual turnover can have no different meaning from the word turnover.The word turnover has been defined under Section 2(r) to mean the aggregate amount for which the goods are bought and sold. Under Section 13(2) the monthly return has to indicate the actual turnover and tax is then payable as per the return. If the return shows that the actual turnover and tax is not paid as per the return, then interest would be payable under Section 24(3) as that would be a case where amount has remained unpaid after the date specified for its payment. However, if the monthly return does not indicate the actual turnover the it was for the Assessing Authority to make a demand on the footing that the return was incomplete or incorrect. In the absence of any such demand interest would not become payable under Section 24(3) as there is no provision for charging of interest prior to the date of demand. In this respect the principles laid down in J.K. Synthetics Ltd.s case fully apply even though the provisions of the Tamil Nadu General Sales Tax Act and the Rajasthan Act may not be identical. The principle to be kept in mind is, that, when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, be it under Section 215 of the Income Tax Act or under Section 7(2) / 7(2A) read with Section 11B(a) of the Rajasthan Sales Tax Act, 1954 (as discussed in the decision of this Court in the case of J.K. Synthetics Ltd.s case (supra) or under Sections 13(2) / 24(3) read with Rule 18(3) under the Tamil Nadu General Sales Tax Act, 1959, then such a levy is different from the levy of interest which is dependent on the discretion of the Assessing Officer. The default arising on non-payment of tax on an admitted liability in the case of self-assessment falls under Section 24(3) read with Rule 18(3) which attracts automatic levy of interest whereas the default in filing incomplete and incorrect return falls under Rule 18(4) which the levy of interest is based on the adjudication by the Assessing Officer. Therefore, Rule 18(3) and Rule 18(4) operate in different spheres14. Under Section 24(1) if the tax has been assessed or has become payable under the Act, then the payment has to be made within the said time as may be specified in the notice of assessment and tax under Section 13(2) has to be paid without any notice of demand. However, as seen above, the tax under Section 13(2), in the absence of any determination by the Assessing Authority, is tax as per the returns. If default is made in payment of such tax then interest becomes payable under the Act. In the present case, it is an admitted position that tax as per the monthly return had been paid within time. It is also an admitted position that there was no assessment, even provisional by the Assessing Authority prior to the final assessment made after the revised returns had been filed. Interest becomes payable under Section 24(3) on an amount remaining unpaid after the date specified for its payment under sub-section (1) of Section 24. As seen above sub-section (1) of Section 24 deals with an assessed tax or tax which has become payable under the Act. In cases covered by Section 13(2) tax must be paid without any notice of demand. But as stated above, under Section 13(2) tax is to be paid "on the basis of such returns". Tax as per the returns has admittedly been paid. If the returns were incomplete or incorrect as now claimed the assessing authority had to determine the tax payable and issue a notice of demand. In the absence of any assessment, even provisional, and a notice of demand no interest would be payable under Section 24(3). In this case, it is an admitted position that as soon as the revised return was filed the Appellants paid the tax as per the revised return. Therefore they paid the tax even before the final assessment took place. Thus the claim for interest, under Section 24(3) from the date that the advances were paid to the sugarcane growers is not sustainable. There is no provision under the Act which permits charging of interest unless and until there has been a provisional assessment and a notice of demand prescribing the period within which the tax was to be paid15. Our view finds support from the Constitution Bench decision of this Court in J.K. Synthetics Ltd.s case (supra). It must be mentioned that earlier to J.K. Synthetics Ltd.s case the question whether interest would be payable from the date of return on the footing that the return is an incorrect return had come up for consideration before a three Judge Bench of this Court in the case of Associated Cement Company Ltd. vs. Commercial Tax Officer, Kota reported in 1981(4) SCC 578. There was a difference of opinion. The majority Judgment held that the return must be a true return and if in a final assessment it is held that the return was incorrect or incomplete, then interest would be leviable from the date the incomplete or incorrect return was filed. The minority opinion held that tax was to be paid as per the return and so long as tax was paid as per the return, merely because in the final assessment it was held that the return was incorrect or incomplete interest could not be levied prior to the date of final assessment and the demand thereunder. The majority view was doubted and the question was referred to a Constitution Bench. The Constitution Bench in J.K. Synthetics Ltd.s case accepted the minority view and overruled the majority view. The Constitution Bench held that tax was payable only as per the returns. It is held that if incomplete or incorrect return are filed it was open to the Assessing Officer to provisionally assess and make a demand. It is held that if that was not done then interest could not be levied on the footing that in a final assessment it is found that the returns had been incorrect18. The decision in J.K. Synthetics Ltd.s case was thereafter followed by another Constitution Bench in the case of Frick India Ltd.s case (supra). These judgments fully cover the question under consideration. They are not only binding on us but we are in full agreement with the principle laid down thereinThe word turnover has been defined under Section 2(r) to mean the aggregate amount for which the goods are bought and sold. Under Section 13(2) the monthly return has to indicate the actual turnover and tax is then payable as per the return. If the return shows that the actual turnover and tax is not paid as per the return, then interest would be payable under Section 24(3) as that would be a case where amount has remained unpaid after the date specified for its payment. However, if the monthly return does not indicate the actual turnover the it was for the Assessing Authority to make a demand on the footing that the return was incomplete or incorrect. In the absence of any such demand interest would not become payable under Section 24(3) as there is no provision for charging of interest prior to the date of demand. In this respect the principles laid down in J.K. Synthetics Ltd.s case fully apply even though the provisions of the Tamil Nadu General Sales Tax Act and the Rajasthan Act may not be identical. The principle to be kept in mind is, that, when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, be it under Section 215 of the Income Tax Act or under Section 7(2) / 7(2A) read with Section 11B(a) of the Rajasthan Sales Tax Act, 1954 (as discussed in the decision of this Court in the case of J.K. Synthetics Ltd.s case (supra) or under Sections 13(2) / 24(3) read with Rule 18(3) under the Tamil Nadu General Sales Tax Act, 1959, then such a levy is different from the levy of interest which is dependent on the discretion of the Assessing Officer. The default arising on non-payment of tax on an admitted liability in the case of self-assessment falls under Section 24(3) read with Rule 18(3) which attracts automatic levy of interest whereas the default in filing incomplete and incorrect return falls under Rule 18(4) which the levy of interest is based on the adjudication by the Assessing Officer. Therefore, Rule 18(3) and Rule 18(4) operate in different | 1 | 4,987 | 2,122 | ### Instruction:
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(1) of Section 24 deals with an assessed tax or tax which has become payable under the Act. In cases covered by Section 13(2) tax must be paid without any notice of demand. But as stated above, under Section 13(2) tax is to be paid "on the basis of such returns". Tax as per the returns has admittedly been paid. If the returns were incomplete or incorrect as now claimed the assessing authority had to determine the tax payable and issue a notice of demand. In the absence of any assessment, even provisional, and a notice of demand no interest would be payable under Section 24(3). In this case, it is an admitted position that as soon as the revised return was filed the Appellants paid the tax as per the revised return. Therefore they paid the tax even before the final assessment took place. Thus the claim for interest, under Section 24(3) from the date that the advances were paid to the sugarcane growers is not sustainable. There is no provision under the Act which permits charging of interest unless and until there has been a provisional assessment and a notice of demand prescribing the period within which the tax was to be paid. 15. Our view finds support from the Constitution Bench decision of this Court in J.K. Synthetics Ltd.s case (supra). It must be mentioned that earlier to J.K. Synthetics Ltd.s case the question whether interest would be payable from the date of return on the footing that the return is an incorrect return had come up for consideration before a three Judge Bench of this Court in the case of Associated Cement Company Ltd. vs. Commercial Tax Officer, Kota reported in 1981(4) SCC 578. There was a difference of opinion. The majority Judgment held that the return must be a true return and if in a final assessment it is held that the return was incorrect or incomplete, then interest would be leviable from the date the incomplete or incorrect return was filed. The minority opinion held that tax was to be paid as per the return and so long as tax was paid as per the return, merely because in the final assessment it was held that the return was incorrect or incomplete interest could not be levied prior to the date of final assessment and the demand thereunder. The majority view was doubted and the question was referred to a Constitution Bench. The Constitution Bench in J.K. Synthetics Ltd.s case accepted the minority view and overruled the majority view. The Constitution Bench held that tax was payable only as per the returns. It is held that if incomplete or incorrect return are filed it was open to the Assessing Officer to provisionally assess and make a demand. It is held that if that was not done then interest could not be levied on the footing that in a final assessment it is found that the returns had been incorrect. 18. The decision in J.K. Synthetics Ltd.s case was thereafter followed by another Constitution Bench in the case of Frick India Ltd.s case (supra). These judgments fully cover the question under consideration. They are not only binding on us but we are in full agreement with the principle laid down therein. 17. Mr. Iyer made an attempt to distinguish the judgments on the ground that the provisions under consideration, in J.K. Synthetics Ltd.s case, are not in pari materia with the provisions of the Tamil Nadu General Sales Tax Act. He submitted that the words "actual turnover" had not been used in the Rajasthan Act. He submitted that under the Tamil Nadu General Sales Tax Act the return has to be as per the actual turnover. In our view, the words actual turnover can have no different meaning from the word turnover. The word turnover has been defined under Section 2(r) to mean the aggregate amount for which the goods are bought and sold. Under Section 13(2) the monthly return has to indicate the actual turnover and tax is then payable as per the return. If the return shows that the actual turnover and tax is not paid as per the return, then interest would be payable under Section 24(3) as that would be a case where amount has remained unpaid after the date specified for its payment. However, if the monthly return does not indicate the actual turnover the it was for the Assessing Authority to make a demand on the footing that the return was incomplete or incorrect. In the absence of any such demand interest would not become payable under Section 24(3) as there is no provision for charging of interest prior to the date of demand. In this respect the principles laid down in J.K. Synthetics Ltd.s case fully apply even though the provisions of the Tamil Nadu General Sales Tax Act and the Rajasthan Act may not be identical. The principle to be kept in mind is, that, when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, be it under Section 215 of the Income Tax Act or under Section 7(2) / 7(2A) read with Section 11B(a) of the Rajasthan Sales Tax Act, 1954 (as discussed in the decision of this Court in the case of J.K. Synthetics Ltd.s case (supra) or under Sections 13(2) / 24(3) read with Rule 18(3) under the Tamil Nadu General Sales Tax Act, 1959, then such a levy is different from the levy of interest which is dependent on the discretion of the Assessing Officer. The default arising on non-payment of tax on an admitted liability in the case of self-assessment falls under Section 24(3) read with Rule 18(3) which attracts automatic levy of interest whereas the default in filing incomplete and incorrect return falls under Rule 18(4) which the levy of interest is based on the adjudication by the Assessing Officer. Therefore, Rule 18(3) and Rule 18(4) operate in different spheres.
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1
### Explanation:
If default is made in payment of such tax then interest becomes payable under the Act. In the present case, it is an admitted position that tax as per the monthly return had been paid within time. It is also an admitted position that there was no assessment, even provisional by the Assessing Authority prior to the final assessment made after the revised returns had been filed. Interest becomes payable under Section 24(3) on an amount remaining unpaid after the date specified for its payment under sub-section (1) of Section 24. As seen above sub-section (1) of Section 24 deals with an assessed tax or tax which has become payable under the Act. In cases covered by Section 13(2) tax must be paid without any notice of demand. But as stated above, under Section 13(2) tax is to be paid "on the basis of such returns". Tax as per the returns has admittedly been paid. If the returns were incomplete or incorrect as now claimed the assessing authority had to determine the tax payable and issue a notice of demand. In the absence of any assessment, even provisional, and a notice of demand no interest would be payable under Section 24(3). In this case, it is an admitted position that as soon as the revised return was filed the Appellants paid the tax as per the revised return. Therefore they paid the tax even before the final assessment took place. Thus the claim for interest, under Section 24(3) from the date that the advances were paid to the sugarcane growers is not sustainable. There is no provision under the Act which permits charging of interest unless and until there has been a provisional assessment and a notice of demand prescribing the period within which the tax was to be paid15. Our view finds support from the Constitution Bench decision of this Court in J.K. Synthetics Ltd.s case (supra). It must be mentioned that earlier to J.K. Synthetics Ltd.s case the question whether interest would be payable from the date of return on the footing that the return is an incorrect return had come up for consideration before a three Judge Bench of this Court in the case of Associated Cement Company Ltd. vs. Commercial Tax Officer, Kota reported in 1981(4) SCC 578. There was a difference of opinion. The majority Judgment held that the return must be a true return and if in a final assessment it is held that the return was incorrect or incomplete, then interest would be leviable from the date the incomplete or incorrect return was filed. The minority opinion held that tax was to be paid as per the return and so long as tax was paid as per the return, merely because in the final assessment it was held that the return was incorrect or incomplete interest could not be levied prior to the date of final assessment and the demand thereunder. The majority view was doubted and the question was referred to a Constitution Bench. The Constitution Bench in J.K. Synthetics Ltd.s case accepted the minority view and overruled the majority view. The Constitution Bench held that tax was payable only as per the returns. It is held that if incomplete or incorrect return are filed it was open to the Assessing Officer to provisionally assess and make a demand. It is held that if that was not done then interest could not be levied on the footing that in a final assessment it is found that the returns had been incorrect18. The decision in J.K. Synthetics Ltd.s case was thereafter followed by another Constitution Bench in the case of Frick India Ltd.s case (supra). These judgments fully cover the question under consideration. They are not only binding on us but we are in full agreement with the principle laid down thereinThe word turnover has been defined under Section 2(r) to mean the aggregate amount for which the goods are bought and sold. Under Section 13(2) the monthly return has to indicate the actual turnover and tax is then payable as per the return. If the return shows that the actual turnover and tax is not paid as per the return, then interest would be payable under Section 24(3) as that would be a case where amount has remained unpaid after the date specified for its payment. However, if the monthly return does not indicate the actual turnover the it was for the Assessing Authority to make a demand on the footing that the return was incomplete or incorrect. In the absence of any such demand interest would not become payable under Section 24(3) as there is no provision for charging of interest prior to the date of demand. In this respect the principles laid down in J.K. Synthetics Ltd.s case fully apply even though the provisions of the Tamil Nadu General Sales Tax Act and the Rajasthan Act may not be identical. The principle to be kept in mind is, that, when the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, be it under Section 215 of the Income Tax Act or under Section 7(2) / 7(2A) read with Section 11B(a) of the Rajasthan Sales Tax Act, 1954 (as discussed in the decision of this Court in the case of J.K. Synthetics Ltd.s case (supra) or under Sections 13(2) / 24(3) read with Rule 18(3) under the Tamil Nadu General Sales Tax Act, 1959, then such a levy is different from the levy of interest which is dependent on the discretion of the Assessing Officer. The default arising on non-payment of tax on an admitted liability in the case of self-assessment falls under Section 24(3) read with Rule 18(3) which attracts automatic levy of interest whereas the default in filing incomplete and incorrect return falls under Rule 18(4) which the levy of interest is based on the adjudication by the Assessing Officer. Therefore, Rule 18(3) and Rule 18(4) operate in different
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Shri Sant Eknath Sahakari Sakhar Karkhana Limited Vs. Aurangabad Paper Mills Limited and Others | the civil suit in the court, whether the decree passed by the First Appellate Court and the High Court, in second appeal is null Appellate and void as without jurisdiction ?(ii) When Section 164 of the Maharashtra Cooperative Societies Act, 1960 requires mandatory notice to be served by the plaintiff before filing the civil suit, which admittedly was not given by Respondent 1 herein, whether the judgment and decree passed under the circumstances are null and void in law ?(iii) Whether the High Court was justified in given relief under Section 20 of the specific Relief Act for specific performance - of the contract, when there was no case made out for such specific performance in view of the fact - (i) the Chairman of the Society had no authority or the sanction as required under Section 72 of the Maharashtra Cooperative Societies Act, 1960 was not given by the general body to execute the agreement for sale;(ii) the consideration for such agreement to sell was too low and disproportionate to the price of the land which resulted in heavy loss to the society and thus the specific performance was unexecutable; and(iii) Under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 the Director of Sugar specifically refused permission to execute the sale deed, and, therefore, the civil court namely District Court in first appeal and the High Court in second appeal had no justification in law to grant decree for specific performance of the contract." 3. So far as the first and second grounds are concerned, learned counsel for the appellant very fairly does not press the same in view of this Courts decision in Marine Times Publications (P) Ltd. v. Shriram Transport and Finance Co. Ltd. What survives, therefore, is the third ground. So far as the third ground is concerned, it has three limbs. As to the second limb which relates to the question of the inadequacy of the sale price the learned counsel for the appellant fairly states that that being a question of fact it would not be possible for him to request this Court to reappreciate the evidence in that behalf. That leaves us with the other two aspects, namely, (i) Whether the Chairman was duly authorised to execute the document in question and (ii) whether under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 (hereinafter called the Rules) the prior permission of the Director of Sugar for the execution of the document was a sine qua non and in the absence of such a permission the transaction was void. On the first point, reference may be made to Section 72 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter called the Act). That section provides that subject to the provisions in this Act and the Rules, the final authority of every society shall vest in the general body of members. This section does not specifically speak about the Chairmans power or the lack of it to enter into the agreement in question. However, the bye-laws of the society throw some light in this behalf. Bye-law 43 states that subject to the special responsibilities as provided in the bye-law, the Board of Directors shall be responsible for conducting the affairs of the society. It then proceeds to say that in particular, the Board of Directors shall be responsible for all decisions in respect of the matter enumerated therein, sale of assets being Item No. (xix). It would thus seem that under the bye-laws the Board of Directors could decide on sale of assets of the Cooperative Society. It appears that a meeting of the Board of Directors was held on 6-6-1974 at 2.00 p.m. Since only four Directors were present it was adjourned for want of quorum and was recalled in the evening at 6.00 p.m. At the said meeting, Resolution No. 5 was passed to the effect that the land in question may be sold to the respondents for Rs 10, 665. The Resolution then proceeds to add : "It is decided that the authority be given to Honble Chairman for executing all relevant papers regarding this." It will thus be seen that the Board of Directors decided to sell the land in question to the respondent-Company for Rs 10, 665 and authorised the Chairman to execute all relevant documents in that behalf. Pursuant to the said authority, the Chairman executed the agreement to sell on 25-7-1974. The receipt evidencing the delivery of possession of even date was also executed by the Chairman. It will thus be seen that the Chairman was duly authorised by the members to enter into the transaction in question. The contention that the Chairman was not duly authorised is, therefore, without merit and the same cannot be questioned on the language of Section 72 of the Act 4. Lastly, the question regarding the prior permission of the Director of Sugar has to be examined in the context of Rule 47 which is the foundation for the plea. Rule 47 reads as under "47. On the application of a member of any society or of his own motion, when it appears to the Registrar that it is necessary in the interest of the working of any particular society, to regulate or restrict transactions of such society with any non-member, the Registrar shall after giving an opportunity to the society of being heard, issue such directions as he may consider necessary regulating or restricting such transactions." * No such directions were issued by the Registrar of the Society prohibiting or restricting the execution of such transactions, namely, sale of society property, at least none has been pointed out to us. The rule by itself unless supported by such a restrictive direction of the Registrar does not prohibit or preclude the Board of Directors from entering into such transactions which are permitted by Bye-law 43 (xix) of the bye-laws framed under the relevant provisions of the Act and the Rules. We, therefore, do not see any substance in this contention also | 0[ds]3. So far as the first and second grounds are concerned, learned counsel for the appellant very fairly does not press the same in view of this Courts decision in Marine Times Publications (P) Ltd. v. Shriram Transport and Finance Co. Ltd. What survives, therefore, is the third ground. So far as the third ground is concerned, it has three limbs. As to the second limb which relates to the question of the inadequacy of the sale price the learned counsel for the appellant fairly states that that being a question of fact it would not be possible for him to request this Court to reappreciate the evidence in that behalf. Thatleaves us with the other two aspects, namely, (i) Whether the Chairman was duly authorised to execute the document in question and (ii) whether under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 (hereinafter called the Rules) the prior permission of the Director of Sugar for the execution of the document was a sine qua non and in the absence of such a permission the transaction was void.On the first point, reference may be made to Section 72 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter called the Act). That section provides that subject to the provisions in this Act and the Rules, the final authority of every society shall vest in the general body of members. This section does not specifically speak about the Chairmans power or the lack of it to enter into the agreement in question. However, theof the society throw some light in this behalf.43 states that subject to the special responsibilities as provided in thethe Board of Directors shall be responsible for conducting the affairs of the society. It then proceeds to say that in particular, the Board of Directors shall be responsible for all decisions in respect of the matter enumerated therein, sale of assets being Item No. (xix). It would thus seem that under thethe Board of Directors could decide on sale of assets of the Cooperative Society. It appears that a meeting of the Board of Directors was held onat 2.00 p.m. Since only four Directors were present it was adjourned for want of quorum and was recalled in the evening at 6.00 p.m. At the said meeting, Resolution No. 5 was passed to the effect that the land in question may be sold to the respondents for Rs 10, 665. The Resolution then proceeds to add : "It is decided that the authority be given to Honble Chairman for executing all relevant papers regarding this." It will thus be seen that the Board of Directors decidedto sell the land inquestion to thefor Rs 10, 665 and authorised the Chairman to execute all relevant documents in that behalf. Pursuant to the said authority, the Chairman executed the agreement to sell onThe receipt evidencing the delivery of possession of even date was also executed by the Chairman. It will thus be seen that the Chairman was duly authorised by the members to enter into the transaction in question. The contention that the Chairman was not duly authorised is, therefore, without merit and the same cannot be questioned on the language of Section 72 of thesuch directions were issued by the Registrar of the Society prohibiting or restricting the execution of such transactions, namely, sale of society property, at least none has been pointed out to us. The rule by itself unless supported by such a restrictive direction of the Registrar does not prohibit or preclude the Board of Directors from entering into such transactions which are permitted by43 (xix) of theframed under the relevant provisions of the Act and the Rules. We, therefore, do not see any substance in this contention also | 0 | 1,363 | 686 | ### Instruction:
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the civil suit in the court, whether the decree passed by the First Appellate Court and the High Court, in second appeal is null Appellate and void as without jurisdiction ?(ii) When Section 164 of the Maharashtra Cooperative Societies Act, 1960 requires mandatory notice to be served by the plaintiff before filing the civil suit, which admittedly was not given by Respondent 1 herein, whether the judgment and decree passed under the circumstances are null and void in law ?(iii) Whether the High Court was justified in given relief under Section 20 of the specific Relief Act for specific performance - of the contract, when there was no case made out for such specific performance in view of the fact - (i) the Chairman of the Society had no authority or the sanction as required under Section 72 of the Maharashtra Cooperative Societies Act, 1960 was not given by the general body to execute the agreement for sale;(ii) the consideration for such agreement to sell was too low and disproportionate to the price of the land which resulted in heavy loss to the society and thus the specific performance was unexecutable; and(iii) Under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 the Director of Sugar specifically refused permission to execute the sale deed, and, therefore, the civil court namely District Court in first appeal and the High Court in second appeal had no justification in law to grant decree for specific performance of the contract." 3. So far as the first and second grounds are concerned, learned counsel for the appellant very fairly does not press the same in view of this Courts decision in Marine Times Publications (P) Ltd. v. Shriram Transport and Finance Co. Ltd. What survives, therefore, is the third ground. So far as the third ground is concerned, it has three limbs. As to the second limb which relates to the question of the inadequacy of the sale price the learned counsel for the appellant fairly states that that being a question of fact it would not be possible for him to request this Court to reappreciate the evidence in that behalf. That leaves us with the other two aspects, namely, (i) Whether the Chairman was duly authorised to execute the document in question and (ii) whether under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 (hereinafter called the Rules) the prior permission of the Director of Sugar for the execution of the document was a sine qua non and in the absence of such a permission the transaction was void. On the first point, reference may be made to Section 72 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter called the Act). That section provides that subject to the provisions in this Act and the Rules, the final authority of every society shall vest in the general body of members. This section does not specifically speak about the Chairmans power or the lack of it to enter into the agreement in question. However, the bye-laws of the society throw some light in this behalf. Bye-law 43 states that subject to the special responsibilities as provided in the bye-law, the Board of Directors shall be responsible for conducting the affairs of the society. It then proceeds to say that in particular, the Board of Directors shall be responsible for all decisions in respect of the matter enumerated therein, sale of assets being Item No. (xix). It would thus seem that under the bye-laws the Board of Directors could decide on sale of assets of the Cooperative Society. It appears that a meeting of the Board of Directors was held on 6-6-1974 at 2.00 p.m. Since only four Directors were present it was adjourned for want of quorum and was recalled in the evening at 6.00 p.m. At the said meeting, Resolution No. 5 was passed to the effect that the land in question may be sold to the respondents for Rs 10, 665. The Resolution then proceeds to add : "It is decided that the authority be given to Honble Chairman for executing all relevant papers regarding this." It will thus be seen that the Board of Directors decided to sell the land in question to the respondent-Company for Rs 10, 665 and authorised the Chairman to execute all relevant documents in that behalf. Pursuant to the said authority, the Chairman executed the agreement to sell on 25-7-1974. The receipt evidencing the delivery of possession of even date was also executed by the Chairman. It will thus be seen that the Chairman was duly authorised by the members to enter into the transaction in question. The contention that the Chairman was not duly authorised is, therefore, without merit and the same cannot be questioned on the language of Section 72 of the Act 4. Lastly, the question regarding the prior permission of the Director of Sugar has to be examined in the context of Rule 47 which is the foundation for the plea. Rule 47 reads as under "47. On the application of a member of any society or of his own motion, when it appears to the Registrar that it is necessary in the interest of the working of any particular society, to regulate or restrict transactions of such society with any non-member, the Registrar shall after giving an opportunity to the society of being heard, issue such directions as he may consider necessary regulating or restricting such transactions." * No such directions were issued by the Registrar of the Society prohibiting or restricting the execution of such transactions, namely, sale of society property, at least none has been pointed out to us. The rule by itself unless supported by such a restrictive direction of the Registrar does not prohibit or preclude the Board of Directors from entering into such transactions which are permitted by Bye-law 43 (xix) of the bye-laws framed under the relevant provisions of the Act and the Rules. We, therefore, do not see any substance in this contention also
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3. So far as the first and second grounds are concerned, learned counsel for the appellant very fairly does not press the same in view of this Courts decision in Marine Times Publications (P) Ltd. v. Shriram Transport and Finance Co. Ltd. What survives, therefore, is the third ground. So far as the third ground is concerned, it has three limbs. As to the second limb which relates to the question of the inadequacy of the sale price the learned counsel for the appellant fairly states that that being a question of fact it would not be possible for him to request this Court to reappreciate the evidence in that behalf. Thatleaves us with the other two aspects, namely, (i) Whether the Chairman was duly authorised to execute the document in question and (ii) whether under Rule 47 of the Maharashtra Cooperative Societies Rules, 1961 (hereinafter called the Rules) the prior permission of the Director of Sugar for the execution of the document was a sine qua non and in the absence of such a permission the transaction was void.On the first point, reference may be made to Section 72 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter called the Act). That section provides that subject to the provisions in this Act and the Rules, the final authority of every society shall vest in the general body of members. This section does not specifically speak about the Chairmans power or the lack of it to enter into the agreement in question. However, theof the society throw some light in this behalf.43 states that subject to the special responsibilities as provided in thethe Board of Directors shall be responsible for conducting the affairs of the society. It then proceeds to say that in particular, the Board of Directors shall be responsible for all decisions in respect of the matter enumerated therein, sale of assets being Item No. (xix). It would thus seem that under thethe Board of Directors could decide on sale of assets of the Cooperative Society. It appears that a meeting of the Board of Directors was held onat 2.00 p.m. Since only four Directors were present it was adjourned for want of quorum and was recalled in the evening at 6.00 p.m. At the said meeting, Resolution No. 5 was passed to the effect that the land in question may be sold to the respondents for Rs 10, 665. The Resolution then proceeds to add : "It is decided that the authority be given to Honble Chairman for executing all relevant papers regarding this." It will thus be seen that the Board of Directors decidedto sell the land inquestion to thefor Rs 10, 665 and authorised the Chairman to execute all relevant documents in that behalf. Pursuant to the said authority, the Chairman executed the agreement to sell onThe receipt evidencing the delivery of possession of even date was also executed by the Chairman. It will thus be seen that the Chairman was duly authorised by the members to enter into the transaction in question. The contention that the Chairman was not duly authorised is, therefore, without merit and the same cannot be questioned on the language of Section 72 of thesuch directions were issued by the Registrar of the Society prohibiting or restricting the execution of such transactions, namely, sale of society property, at least none has been pointed out to us. The rule by itself unless supported by such a restrictive direction of the Registrar does not prohibit or preclude the Board of Directors from entering into such transactions which are permitted by43 (xix) of theframed under the relevant provisions of the Act and the Rules. We, therefore, do not see any substance in this contention also
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Shree Vishal Printers Ltd Vs. Fund Commissioner, Jaipur and Ors | same building as BCCL, Jaipur, albeit stated to be at a different floor. One of the clauses, which has been referred to, which shows that there was no exclusivity of dealing, is clause 28, which reads as under: "28. ?SHREE VISHAL? will be at full liberty to undertake any other contract for printing newspaper/journals from any other party/s provided it ensures timely printing of the daily newspapers of ?Bennett? and complies with Clause 32 of this agreement.? 34. In the aforesaid context, it may be noted that clause 32 referred to in this clause is only a ‘Confidentiality Clause?.35. A great emphasis was laid by learned senior counsel appearing for the said entity on the ‘Non-Exclusivity Clause? in the agreement between the two parties, i.e., clause 28. Once again, the emphasis was on the two companies being separate legal entities, there being no commonality of directors or shareholders, or direct financial control. The balance sheet and profit and loss accounts were also separate. Another aspect emphasised was that the printing press of SVPL was located at a different premises from where the business was really being carried on, though naturally, the control of the business would be from the office located in the same premises as BCCL, Mumbai. It is not, however, disputed that SVPL had, at its own cost, given adequate covered area adjacent to the printing press to BCCL, Mumbai for storing the newspaper/printing. The consideration, which was being paid to SVPL for printing included the cost of making available the aforesaid space for packaging and storage operations.36. Learned counsel for the respondent, once again, sought to emphasise the functional dependence between the companies. The aspect of Mr. Sunil Gupta, Manager of BCCL signing papers relating to SVPL was emphasised, including notices of closure, as discussed in the case of TPHL. The common factor, again, is of BCCL, Mumbai issuing orders on the letter pad of SVPL. In fact, the nature of communications and orders issued do suggest that all three were working towards the common object of bringing out a newspaper.37. The aforesaid would not have been sufficient by itself, but for the application of the functional integrality test, which linked them to be part of the same establishment.38. We may add here that in the impugned orders it is not very clear as to whether the reference is being made to BCCL, Mumbai or to BCCL, Jaipur. However, as noticed before, the same is not of much consequence for the reason that BCCL, Jaipur is admittedly a branch office of BCCL, Mumbai.39. We have examined this case more closely because of the factual pleas raised by learned senior counsel for SVPL. We have also taken note of the fact that as per the submissions of the learned senior counsel, the said unit was subsequently merged into another company, an aspect already noticed aforesaid.40. Despite the aforesaid, in the complete conspectus of facts, after divorcing different aspects of the three establishments, we are unable to come to a conclusion different from the one which we have come to for TPHL. We believe that the very nature of the working of SVPL and the other two entities show the functional integrality test to be satisfied. They may be different legal entities, an arrangement may have been made to have different directors and shareholders, but the nature of control and integrality of functionality, between the three entities is quite apparent from the facts set out hereinabove. Each one of the facts by itself may not be conclusive, but taken as a whole, there can be no other conclusion, than the one arrived at by the RPFC. We are doing so, quite conscious of the fact that there is undoubtedly some jumbling which has arisen in the order of the RPFC, which has been affirmed throughout. But then, the case of the appellants was built on the principle that all these three entities have really no functional integrality vis-à-vis BCCL, Mumbai. As it emerged subsequently, and was conceded before us; there is little doubt that BCCL, Jaipur is a unit of BCCL, Mumbai, and the other two units have linkages and are controlled by BCCL, Jaipur in a manner which would satisfy the functional integrality test.41. The said Act being a beneficial legislation, the object of excluding the infancy period of five years (later reduced to three years) from the rigours of the Act, was only to provide to new establishments, a period to establish their business, and not to permit different kinds of routes to be created to evade the liability under the said Act. Conclusion:42. We have, thus, no hesitation in coming to the conclusion that the findings qua all the three appellants satisfy the functional integrality and the general unity of purpose test, and the same are met in the facts of the present case.43. We may also notice another aspect before parting with the case. On a Court query as to what would be the liability arising from the impugned orders, it was stated to be in the range of only about Rs.15 lakh for which five judicial forums have now been troubled. The other aspect is that this matter has been prolonged over so many years and the only avenue open for the RPFC is to impose damages under Section 14B of the said Act, which, at the relevant time, limited the damages amount to twice the original amount. The net result is that the liability would only double during this long period, over the last more than thirty years. It is only by a subsequent legislative amendment, now repealed, by introduction of Section 7Q, inserted w.e.f. 1.7.1997, that the provision was made for interest to be payable at 12 per cent per annum, which would naturally apply prospectively. Thus, the appellants are getting away lightly on the issue of such liability, the exact amount of which is to be determined. The liability of each of these establishments would be co- extensive with BCCL, Mumbai. | 0[ds]18. We may note at this stage itself that though, in principle, there can be no dispute on this proposition, it does not really appeal to us for the reason that it was intrinsically predicated on the ground that BCCL, Jaipur was a different establishment. Once that is conceded as not so, BCCL, Jaipur was really only a part of BCCL, Mumbai. The connection of the other two establishments with BCCL, Mumbai or, for that matter, BCCL, Jaipur would, thus, not cause an intrinsic fallacy in the order of the RPFC.If the aforesaid factual matrix is analysed within the principles of what would constitute one establishment, as set out in the Associated Cement Company case, AIR 1960 SC 56 it is obvious that there are various parameters dependent on the factual matrix of each case, which have to be examined. Undoubtedly we are not dealing, in this case, with a branch or a unit of BCCL, Mumbai. Thus, a test of unity of ownership, management and control may not really be applicable, but the test would be of functional integrality or general unity of purpose, in the given factual situation. There is no direct unity of employment. In any case, it is the test of functional integrality or general unity of purpose which would have to be applied in the present facts if the two establishments have to be clubbed for the purposes of the provisions of the said Act.21. We may note that one of the arguments of learned senior counsel for the appellant was based on the business model of outsourcing and it was sought to be suggested that if one aspect of work is outsourced to another company, the same would not satisfy the aforesaid tests. However, we did point out to the learned senior counsel that the business model of outsourcing really does not have history that old or was not much prevalent in respect of the time period which we are discussing; but it is a relatively later phenomenon and, thus, that principle would not really be applicable for testing the nature of linkage, if any, for the time with which we are concerned.The important aspect, in our view, which was emphasised by learned counsel for the respondent was the nature of the agreement which provided for both the space and the staff to be made available by TPHL for the benefit of BCCL, Mumbai. The expenses of the establishment, for example, electricity bill, maintenance costs, etc., were to be borne by TPHL.24. If we analyse the aforesaid facts on the touchstone of functional integrality or general unity of purpose, it is difficult, if not impossible, to disagree with the reasoning of four forums, which are sought to be assailed before us.Now examining the agreement with BCCL, Mumbai, dated 1.10.1985, BCCL, Mumbai, having commenced publication of the Jaipur edition of the two newspapers is stated to have approached SVPL for printing the said newspapers on a contract basis. SVPL was to employ the necessary personnel for carrying out various tasks and had to print the newspapers. The remuneration was payable by BCCL, Mumbai to SVPL at Rs.24,000/- per day, for the two daily newspapers. The printing press was elsewhere, but the business office of SVPL was also located in the same building as BCCL, Jaipur, albeit stated to be at a different floor. One of the clauses, which has been referred to, which shows that there was no exclusivity of dealing, is clause 28, which reads as?SHREE VISHAL? will be at full liberty to undertake any other contract for printing newspaper/journals from any other party/s provided it ensures timely printing of the daily newspapers of ?Bennett? and complies with Clause 32 of this agreement.In the aforesaid context, it may be noted that clause 32 referred to in this clause is only a ‘Confidentiality Clause?.35. A great emphasis was laid by learned senior counsel appearing for the said entity on the ‘Non-Exclusivity Clause? in the agreement between the two parties, i.e., clause 28. Once again, the emphasis was on the two companies being separate legal entities, there being no commonality of directors or shareholders, or direct financial control. The balance sheet and profit and loss accounts were also separate. Another aspect emphasised was that the printing press of SVPL was located at a different premises from where the business was really being carried on, though naturally, the control of the business would be from the office located in the same premises as BCCL, Mumbai. It is not, however, disputed that SVPL had, at its own cost, given adequate covered area adjacent to the printing press to BCCL, Mumbai for storing the newspaper/printing. The consideration, which was being paid to SVPL for printing included the cost of making available the aforesaid space for packaging and storage operations.36. Learned counsel for the respondent, once again, sought to emphasise the functional dependence between the companies. The aspect of Mr. Sunil Gupta, Manager of BCCL signing papers relating to SVPL was emphasised, including notices of closure, as discussed in the case of TPHL. The common factor, again, is of BCCL, Mumbai issuing orders on the letter pad of SVPL. In fact, the nature of communications and orders issued do suggest that all three were working towards the common object of bringing out a newspaper.37. The aforesaid would not have been sufficient by itself, but for the application of the functional integrality test, which linked them to be part of the same establishment.38. We may add here that in the impugned orders it is not very clear as to whether the reference is being made to BCCL, Mumbai or to BCCL, Jaipur. However, as noticed before, the same is not of much consequence for the reason that BCCL, Jaipur is admittedly a branch office of BCCL, Mumbai.39. We have examined this case more closely because of the factual pleas raised by learned senior counsel for SVPL. We have also taken note of the fact that as per the submissions of the learned senior counsel, the said unit was subsequently merged into another company, an aspect already noticed aforesaid.40. Despite the aforesaid, in the complete conspectus of facts, after divorcing different aspects of the three establishments, we are unable to come to a conclusion different from the one which we have come to for TPHL. We believe that the very nature of the working of SVPL and the other two entities show the functional integrality test to be satisfied. They may be different legal entities, an arrangement may have been made to have different directors and shareholders, but the nature of control and integrality of functionality, between the three entities is quite apparent from the facts set out hereinabove. Each one of the facts by itself may not be conclusive, but taken as a whole, there can be no other conclusion, than the one arrived at by the RPFC. We are doing so, quite conscious of the fact that there is undoubtedly some jumbling which has arisen in the order of the RPFC, which has been affirmed throughout. But then, the case of the appellants was built on the principle that all these three entities have really no functional integrality vis-à-vis BCCL, Mumbai. As it emerged subsequently, and was conceded before us; there is little doubt that BCCL, Jaipur is a unit of BCCL, Mumbai, and the other two units have linkages and are controlled by BCCL, Jaipur in a manner which would satisfy the functional integrality test.41. The said Act being a beneficial legislation, the object of excluding the infancy period of five years (later reduced to three years) from the rigours of the Act, was only to provide to new establishments, a period to establish their business, and not to permit different kinds of routes to be created to evade the liability under the said Act. Conclusion:42. We have, thus, no hesitation in coming to the conclusion that the findings qua all the three appellants satisfy the functional integrality and the general unity of purpose test, and the same are met in the facts of the present case.43. We may also notice another aspect before parting with the case. On a Court query as to what would be the liability arising from the impugned orders, it was stated to be in the range of only about Rs.15 lakh for which five judicial forums have now been troubled. The other aspect is that this matter has been prolonged over so many years and the only avenue open for the RPFC is to impose damages under Section 14B of the said Act, which, at the relevant time, limited the damages amount to twice the originalnet result is that the liability would only double during this long period, over the last more than thirty years. It is only by a subsequent legislative amendment, now repealed, by introduction of Section 7Q, inserted w.e.f. 1.7.1997, that the provision was made for interest to be payable at 12 per cent per annum, which would naturally apply prospectively. Thus, the appellants are getting away lightly on the issue of such liability, the exact amount of which is to be determined. The liability of each of these establishments would be co- extensive with BCCL, Mumbai.We are, however, not able to persuade ourselves to agree with the submission of the learned senior counsel for the appellant for the reason that what has effectively been done in the present case, under the agreement in question, is that TPHL has handed over its office space, employees and control to BCCL, Mumbai, for all practical purposes, to the extent that the letter pads are also being used without any due regard as to which entity the instructions are being issued from. This is not a case of a singular document being issued, but a number of documents where this practice has been followed. Just to make an endeavour on paper to somehow keep these two segregated for various labour law ramifications would not be an appropriate principle to accept, more so taking into consideration the very purpose for which the said Act was enacted.28. We have, thus, no doubt in rejecting even the case of | 0 | 6,090 | 1,901 | ### 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:
same building as BCCL, Jaipur, albeit stated to be at a different floor. One of the clauses, which has been referred to, which shows that there was no exclusivity of dealing, is clause 28, which reads as under: "28. ?SHREE VISHAL? will be at full liberty to undertake any other contract for printing newspaper/journals from any other party/s provided it ensures timely printing of the daily newspapers of ?Bennett? and complies with Clause 32 of this agreement.? 34. In the aforesaid context, it may be noted that clause 32 referred to in this clause is only a ‘Confidentiality Clause?.35. A great emphasis was laid by learned senior counsel appearing for the said entity on the ‘Non-Exclusivity Clause? in the agreement between the two parties, i.e., clause 28. Once again, the emphasis was on the two companies being separate legal entities, there being no commonality of directors or shareholders, or direct financial control. The balance sheet and profit and loss accounts were also separate. Another aspect emphasised was that the printing press of SVPL was located at a different premises from where the business was really being carried on, though naturally, the control of the business would be from the office located in the same premises as BCCL, Mumbai. It is not, however, disputed that SVPL had, at its own cost, given adequate covered area adjacent to the printing press to BCCL, Mumbai for storing the newspaper/printing. The consideration, which was being paid to SVPL for printing included the cost of making available the aforesaid space for packaging and storage operations.36. Learned counsel for the respondent, once again, sought to emphasise the functional dependence between the companies. The aspect of Mr. Sunil Gupta, Manager of BCCL signing papers relating to SVPL was emphasised, including notices of closure, as discussed in the case of TPHL. The common factor, again, is of BCCL, Mumbai issuing orders on the letter pad of SVPL. In fact, the nature of communications and orders issued do suggest that all three were working towards the common object of bringing out a newspaper.37. The aforesaid would not have been sufficient by itself, but for the application of the functional integrality test, which linked them to be part of the same establishment.38. We may add here that in the impugned orders it is not very clear as to whether the reference is being made to BCCL, Mumbai or to BCCL, Jaipur. However, as noticed before, the same is not of much consequence for the reason that BCCL, Jaipur is admittedly a branch office of BCCL, Mumbai.39. We have examined this case more closely because of the factual pleas raised by learned senior counsel for SVPL. We have also taken note of the fact that as per the submissions of the learned senior counsel, the said unit was subsequently merged into another company, an aspect already noticed aforesaid.40. Despite the aforesaid, in the complete conspectus of facts, after divorcing different aspects of the three establishments, we are unable to come to a conclusion different from the one which we have come to for TPHL. We believe that the very nature of the working of SVPL and the other two entities show the functional integrality test to be satisfied. They may be different legal entities, an arrangement may have been made to have different directors and shareholders, but the nature of control and integrality of functionality, between the three entities is quite apparent from the facts set out hereinabove. Each one of the facts by itself may not be conclusive, but taken as a whole, there can be no other conclusion, than the one arrived at by the RPFC. We are doing so, quite conscious of the fact that there is undoubtedly some jumbling which has arisen in the order of the RPFC, which has been affirmed throughout. But then, the case of the appellants was built on the principle that all these three entities have really no functional integrality vis-à-vis BCCL, Mumbai. As it emerged subsequently, and was conceded before us; there is little doubt that BCCL, Jaipur is a unit of BCCL, Mumbai, and the other two units have linkages and are controlled by BCCL, Jaipur in a manner which would satisfy the functional integrality test.41. The said Act being a beneficial legislation, the object of excluding the infancy period of five years (later reduced to three years) from the rigours of the Act, was only to provide to new establishments, a period to establish their business, and not to permit different kinds of routes to be created to evade the liability under the said Act. Conclusion:42. We have, thus, no hesitation in coming to the conclusion that the findings qua all the three appellants satisfy the functional integrality and the general unity of purpose test, and the same are met in the facts of the present case.43. We may also notice another aspect before parting with the case. On a Court query as to what would be the liability arising from the impugned orders, it was stated to be in the range of only about Rs.15 lakh for which five judicial forums have now been troubled. The other aspect is that this matter has been prolonged over so many years and the only avenue open for the RPFC is to impose damages under Section 14B of the said Act, which, at the relevant time, limited the damages amount to twice the original amount. The net result is that the liability would only double during this long period, over the last more than thirty years. It is only by a subsequent legislative amendment, now repealed, by introduction of Section 7Q, inserted w.e.f. 1.7.1997, that the provision was made for interest to be payable at 12 per cent per annum, which would naturally apply prospectively. Thus, the appellants are getting away lightly on the issue of such liability, the exact amount of which is to be determined. The liability of each of these establishments would be co- extensive with BCCL, Mumbai.
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balance sheet and profit and loss accounts were also separate. Another aspect emphasised was that the printing press of SVPL was located at a different premises from where the business was really being carried on, though naturally, the control of the business would be from the office located in the same premises as BCCL, Mumbai. It is not, however, disputed that SVPL had, at its own cost, given adequate covered area adjacent to the printing press to BCCL, Mumbai for storing the newspaper/printing. The consideration, which was being paid to SVPL for printing included the cost of making available the aforesaid space for packaging and storage operations.36. Learned counsel for the respondent, once again, sought to emphasise the functional dependence between the companies. The aspect of Mr. Sunil Gupta, Manager of BCCL signing papers relating to SVPL was emphasised, including notices of closure, as discussed in the case of TPHL. The common factor, again, is of BCCL, Mumbai issuing orders on the letter pad of SVPL. In fact, the nature of communications and orders issued do suggest that all three were working towards the common object of bringing out a newspaper.37. The aforesaid would not have been sufficient by itself, but for the application of the functional integrality test, which linked them to be part of the same establishment.38. We may add here that in the impugned orders it is not very clear as to whether the reference is being made to BCCL, Mumbai or to BCCL, Jaipur. However, as noticed before, the same is not of much consequence for the reason that BCCL, Jaipur is admittedly a branch office of BCCL, Mumbai.39. We have examined this case more closely because of the factual pleas raised by learned senior counsel for SVPL. We have also taken note of the fact that as per the submissions of the learned senior counsel, the said unit was subsequently merged into another company, an aspect already noticed aforesaid.40. Despite the aforesaid, in the complete conspectus of facts, after divorcing different aspects of the three establishments, we are unable to come to a conclusion different from the one which we have come to for TPHL. We believe that the very nature of the working of SVPL and the other two entities show the functional integrality test to be satisfied. They may be different legal entities, an arrangement may have been made to have different directors and shareholders, but the nature of control and integrality of functionality, between the three entities is quite apparent from the facts set out hereinabove. Each one of the facts by itself may not be conclusive, but taken as a whole, there can be no other conclusion, than the one arrived at by the RPFC. We are doing so, quite conscious of the fact that there is undoubtedly some jumbling which has arisen in the order of the RPFC, which has been affirmed throughout. But then, the case of the appellants was built on the principle that all these three entities have really no functional integrality vis-à-vis BCCL, Mumbai. As it emerged subsequently, and was conceded before us; there is little doubt that BCCL, Jaipur is a unit of BCCL, Mumbai, and the other two units have linkages and are controlled by BCCL, Jaipur in a manner which would satisfy the functional integrality test.41. The said Act being a beneficial legislation, the object of excluding the infancy period of five years (later reduced to three years) from the rigours of the Act, was only to provide to new establishments, a period to establish their business, and not to permit different kinds of routes to be created to evade the liability under the said Act. Conclusion:42. We have, thus, no hesitation in coming to the conclusion that the findings qua all the three appellants satisfy the functional integrality and the general unity of purpose test, and the same are met in the facts of the present case.43. We may also notice another aspect before parting with the case. On a Court query as to what would be the liability arising from the impugned orders, it was stated to be in the range of only about Rs.15 lakh for which five judicial forums have now been troubled. The other aspect is that this matter has been prolonged over so many years and the only avenue open for the RPFC is to impose damages under Section 14B of the said Act, which, at the relevant time, limited the damages amount to twice the originalnet result is that the liability would only double during this long period, over the last more than thirty years. It is only by a subsequent legislative amendment, now repealed, by introduction of Section 7Q, inserted w.e.f. 1.7.1997, that the provision was made for interest to be payable at 12 per cent per annum, which would naturally apply prospectively. Thus, the appellants are getting away lightly on the issue of such liability, the exact amount of which is to be determined. The liability of each of these establishments would be co- extensive with BCCL, Mumbai.We are, however, not able to persuade ourselves to agree with the submission of the learned senior counsel for the appellant for the reason that what has effectively been done in the present case, under the agreement in question, is that TPHL has handed over its office space, employees and control to BCCL, Mumbai, for all practical purposes, to the extent that the letter pads are also being used without any due regard as to which entity the instructions are being issued from. This is not a case of a singular document being issued, but a number of documents where this practice has been followed. Just to make an endeavour on paper to somehow keep these two segregated for various labour law ramifications would not be an appropriate principle to accept, more so taking into consideration the very purpose for which the said Act was enacted.28. We have, thus, no doubt in rejecting even the case of
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Mahabir Commercial Co. Ltd Vs. Commissioner of Income Tax, West Bengal | place outside British India and ex-hypothesi, the profits derived from such sales arose outside British India. An argument was advanced before the Court that under the provisions in the contract for weighment and assay which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of the property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighing and assay. Dealing with this contention S. R. Das, J. (as he then was) speaking for the Court said at p. 135:"It is submitted that that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India. It is not necessary for us to express any opinion on this extreme contention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers bank in London and the documents were delivered by the assessee companys agent, the Eastern Bank Ltd., London, to the buyers bank. This admittedly, and as found by the Appellate Tribunal, always took place in London. It must therefore follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers bank against the acceptance of the relative bill of exchange."It will be observed that the terms of the contract and the course of dealings between the parties is not the same as in his case because in that case the seller clearly retained the property in the goods by having a bill of lading issued in his own name and would only part with the property after the bill of exchange was accepted by the buyers bank in London when the documents would be delivered by him to the companys agent in London and that the fixation of price was dependent on weighment and assay. In the case before us the High Court relied on cls. (7) and 9 (3) of the contract for its conclusions. In our view nothing in those clauses justifies that conclusion. Under cl. (7) where there is a total failure on the part of the buyer to perform the contract, the seller has a right to cancel the contract or treat it as cancelled and resort to the remedies thereunder. But that is a condition where the buyer fails or refuses to perform the contract altogether by not accepting the documents or in not paying against the documents. Even under cl. (9) the condition as to the quality and of excessive moisture is not a condition of the transfer of property. The right of the buyer thereunder is not a right to cancel the contract in toto but only to adjust claims in respect of the quality or moisture for which a remedy has been provided thereunder.There is nothing in the agreement which envisaged the property in the goods being in the seller even after the value of the invoice had been paid by the bank under the letter of credit in Pakistan. It may be further noticed that the bills of lading and/or railway receipts have to be made out to order and endorsed in blank. In all transactions of sale of goods the time and place of appropriation are important elements for determining when the property in the goods passes. It is well settled that an appropriation takes places where the goods are situate at the time of appropriation not where the contract of sale is made. There may be an authority given by one party to the other to appropriate and that appropriation is presumed to be finally made where by the terms of the contract the party so authorised has determined his election by doing such act or thing which cannot be done until the goods are appropriated. Generally, subject to the limitations already discussed a seller appropriates the goods by the delivery of the bill of lading the document giving control of the goods in exchange for payment of the price by which he shows that he does not intend to retain the right of disposal of the property in the goods.13. A consideration of the terms of the contract and the letter of credit make it evident that once the bills of lading and documents contemplated under the contract are handed over to the bank to be delivered to the buyer and the seller receives the value thereof as shown in the invoice and in terms of the contract, he no longer retained the property in the goods. The provision that all drafts drawn under the letter of credit are to be treated as advance bills through their Chittagong office do not in any way affect the nature of the transaction inasmuch as they are intended as advance notice to the buyer who may want to make arrangements regarding the taking of delivery or dealing with the goods etc. In fact under the contract it is provided that immediate notice should be given to the buyer as soon as the seller begins to load the goods. In any case under the letter of credit the bank informs the seller that it "guarantees to protect the drawers, endorses and bona fide holders from any consequences which may arise in the event of the non-acceptance or non-payment of the drafts drawn in accordance with the terms of this credit." This clause in the letter of credit further assures the seller of the performance of the contract and does affect the property in the goods passing to the buyer in Pakistan.14 | 1[ds]12. On the facts as found, (1955) 27 ITR 128 (supra) by this Court is clearly distinguishable, because in that case the assessee company which is the seller had shipped the goods under a bill of lading issued in its own name and that under the contract it was not obliged to part with the bill of lading until the bill of exchange drawn by it on the buyers bank where the irrevocable letter of credit was opened was honoured. It is not necessary to relate all the details of the contracts except to say that the contracts of sale of chromite by the Mysore Company to purchasers in Europoe were entered into between the buyers and the assessees agents in London and the contracts of sale to persons in America were signed by the assessees managing agents in Madras and by a company in Amercia who bought for undisclosed principles. Under the contracts the price was F.O.B. Madras. Provision was made for weighment, sampling and assay of goods at destination. Before the goods were actually shipped, the buyers opened a confirmed irrevocable bankers credit with a bank in London. The fact that letters of credit had been opened was communicated by the assessees bankers in London, Eastern Bank Ltd., to their branch in Madras who thereupon wrote to the assessee offering to negotiate the drafts drawn in terms of the contract provided the documents were in order and concluded the letter with a warning that the advance was given for the assessees guidance without involving any responsibility on the part of the bank. On receipt of this intimation the assessee placed the contracted goods on board the steamer at Madras and obtained a bill of lading in its own name. The Court held that upon the terms of the contract and the course of dealings between the parties the property in the goods passed in London where the bill of lading was handed over to the buyers bank against the acceptance of the relative bill of exchange. The sales therefore took place outside British India and ex-hypothesi, the profits derived from such sales arose outside British India. An argument was advanced before the Court that under the provisions in the contract for weighment and assay which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of the property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighing and assay. Dealing with this contention S. R. Das, J. (as he then was) speaking for the Court said at p.is submitted that that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India. It is not necessary for us to express any opinion on this extreme contention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers bank in London and the documents were delivered by the assessee companys agent, the Eastern Bank Ltd., London, to the buyers bank. This admittedly, and as found by the Appellate Tribunal, always took place in London. It must therefore follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers bank against the acceptance of the relative bill ofwill be observed that the terms of the contract and the course of dealings between the parties is not the same as in his case because in that case the seller clearly retained the property in the goods by having a bill of lading issued in his own name and would only part with the property after the bill of exchange was accepted by the buyers bank in London when the documents would be delivered by him to the companys agent in London and that the fixation of price was dependent on weighment and assay. In the case before us the High Court relied on cls. (7) and 9 (3) of the contract for its conclusions. In our view nothing in those clauses justifies that conclusion. Under cl. (7) where there is a total failure on the part of the buyer to perform the contract, the seller has a right to cancel the contract or treat it as cancelled and resort to the remedies thereunder. But that is a condition where the buyer fails or refuses to perform the contract altogether by not accepting the documents or in not paying against the documents. Even under cl. (9) the condition as to the quality and of excessive moisture is not a condition of the transfer of property. The right of the buyer thereunder is not a right to cancel the contract in toto but only to adjust claims in respect of the quality or moisture for which a remedy has been provided thereunder.There is nothing in the agreement which envisaged the property in the goods being in the seller even after the value of the invoice had been paid by the bank under the letter of credit in Pakistan. It may be further noticed that the bills of lading and/or railway receipts have to be made out to order and endorsed in blank. In all transactions of sale of goods the time and place of appropriation are important elements for determining when the property in the goods passes. It is well settled that an appropriation takes places where the goods are situate at the time of appropriation not where the contract of sale is made. There may be an authority given by one party to the other to appropriate and that appropriation is presumed to be finally made where by the terms of the contract the party so authorised has determined his election by doing such act or thing which cannot be done until the goods are appropriated. Generally, subject to the limitations already discussed a seller appropriates the goods by the delivery of the bill of lading the document giving control of the goods in exchange for payment of the price by which he shows that he does not intend to retain the right of disposal of the property in the goods.13. A consideration of the terms of the contract and the letter of credit make it evident that once the bills of lading and documents contemplated under the contract are handed over to the bank to be delivered to the buyer and the seller receives the value thereof as shown in the invoice and in terms of the contract, he no longer retained the property in the goods. The provision that all drafts drawn under the letter of credit are to be treated as advance bills through their Chittagong office do not in any way affect the nature of the transaction inasmuch as they are intended as advance notice to the buyer who may want to make arrangements regarding the taking of delivery or dealing with the goods etc. In fact under the contract it is provided that immediate notice should be given to the buyer as soon as the seller begins to load the goods. In any case under the letter of credit the bank informs the seller that it "guarantees to protect the drawers, endorses and bona fide holders from any consequences which may arise in the event of the non-acceptance or non-payment of the drafts drawn in accordance with the terms of this credit." This clause in the letter of credit further assures the seller of the performance of the contract and does affect the property in the goods passing to the buyer in Pakistan. | 1 | 9,019 | 1,420 | ### Instruction:
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place outside British India and ex-hypothesi, the profits derived from such sales arose outside British India. An argument was advanced before the Court that under the provisions in the contract for weighment and assay which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of the property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighing and assay. Dealing with this contention S. R. Das, J. (as he then was) speaking for the Court said at p. 135:"It is submitted that that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India. It is not necessary for us to express any opinion on this extreme contention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers bank in London and the documents were delivered by the assessee companys agent, the Eastern Bank Ltd., London, to the buyers bank. This admittedly, and as found by the Appellate Tribunal, always took place in London. It must therefore follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers bank against the acceptance of the relative bill of exchange."It will be observed that the terms of the contract and the course of dealings between the parties is not the same as in his case because in that case the seller clearly retained the property in the goods by having a bill of lading issued in his own name and would only part with the property after the bill of exchange was accepted by the buyers bank in London when the documents would be delivered by him to the companys agent in London and that the fixation of price was dependent on weighment and assay. In the case before us the High Court relied on cls. (7) and 9 (3) of the contract for its conclusions. In our view nothing in those clauses justifies that conclusion. Under cl. (7) where there is a total failure on the part of the buyer to perform the contract, the seller has a right to cancel the contract or treat it as cancelled and resort to the remedies thereunder. But that is a condition where the buyer fails or refuses to perform the contract altogether by not accepting the documents or in not paying against the documents. Even under cl. (9) the condition as to the quality and of excessive moisture is not a condition of the transfer of property. The right of the buyer thereunder is not a right to cancel the contract in toto but only to adjust claims in respect of the quality or moisture for which a remedy has been provided thereunder.There is nothing in the agreement which envisaged the property in the goods being in the seller even after the value of the invoice had been paid by the bank under the letter of credit in Pakistan. It may be further noticed that the bills of lading and/or railway receipts have to be made out to order and endorsed in blank. In all transactions of sale of goods the time and place of appropriation are important elements for determining when the property in the goods passes. It is well settled that an appropriation takes places where the goods are situate at the time of appropriation not where the contract of sale is made. There may be an authority given by one party to the other to appropriate and that appropriation is presumed to be finally made where by the terms of the contract the party so authorised has determined his election by doing such act or thing which cannot be done until the goods are appropriated. Generally, subject to the limitations already discussed a seller appropriates the goods by the delivery of the bill of lading the document giving control of the goods in exchange for payment of the price by which he shows that he does not intend to retain the right of disposal of the property in the goods.13. A consideration of the terms of the contract and the letter of credit make it evident that once the bills of lading and documents contemplated under the contract are handed over to the bank to be delivered to the buyer and the seller receives the value thereof as shown in the invoice and in terms of the contract, he no longer retained the property in the goods. The provision that all drafts drawn under the letter of credit are to be treated as advance bills through their Chittagong office do not in any way affect the nature of the transaction inasmuch as they are intended as advance notice to the buyer who may want to make arrangements regarding the taking of delivery or dealing with the goods etc. In fact under the contract it is provided that immediate notice should be given to the buyer as soon as the seller begins to load the goods. In any case under the letter of credit the bank informs the seller that it "guarantees to protect the drawers, endorses and bona fide holders from any consequences which may arise in the event of the non-acceptance or non-payment of the drafts drawn in accordance with the terms of this credit." This clause in the letter of credit further assures the seller of the performance of the contract and does affect the property in the goods passing to the buyer in Pakistan.14
### Response:
1
### Explanation:
The sales therefore took place outside British India and ex-hypothesi, the profits derived from such sales arose outside British India. An argument was advanced before the Court that under the provisions in the contract for weighment and assay which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of the property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighing and assay. Dealing with this contention S. R. Das, J. (as he then was) speaking for the Court said at p.is submitted that that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India. It is not necessary for us to express any opinion on this extreme contention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers bank in London and the documents were delivered by the assessee companys agent, the Eastern Bank Ltd., London, to the buyers bank. This admittedly, and as found by the Appellate Tribunal, always took place in London. It must therefore follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers bank against the acceptance of the relative bill ofwill be observed that the terms of the contract and the course of dealings between the parties is not the same as in his case because in that case the seller clearly retained the property in the goods by having a bill of lading issued in his own name and would only part with the property after the bill of exchange was accepted by the buyers bank in London when the documents would be delivered by him to the companys agent in London and that the fixation of price was dependent on weighment and assay. In the case before us the High Court relied on cls. (7) and 9 (3) of the contract for its conclusions. In our view nothing in those clauses justifies that conclusion. Under cl. (7) where there is a total failure on the part of the buyer to perform the contract, the seller has a right to cancel the contract or treat it as cancelled and resort to the remedies thereunder. But that is a condition where the buyer fails or refuses to perform the contract altogether by not accepting the documents or in not paying against the documents. Even under cl. (9) the condition as to the quality and of excessive moisture is not a condition of the transfer of property. The right of the buyer thereunder is not a right to cancel the contract in toto but only to adjust claims in respect of the quality or moisture for which a remedy has been provided thereunder.There is nothing in the agreement which envisaged the property in the goods being in the seller even after the value of the invoice had been paid by the bank under the letter of credit in Pakistan. It may be further noticed that the bills of lading and/or railway receipts have to be made out to order and endorsed in blank. In all transactions of sale of goods the time and place of appropriation are important elements for determining when the property in the goods passes. It is well settled that an appropriation takes places where the goods are situate at the time of appropriation not where the contract of sale is made. There may be an authority given by one party to the other to appropriate and that appropriation is presumed to be finally made where by the terms of the contract the party so authorised has determined his election by doing such act or thing which cannot be done until the goods are appropriated. Generally, subject to the limitations already discussed a seller appropriates the goods by the delivery of the bill of lading the document giving control of the goods in exchange for payment of the price by which he shows that he does not intend to retain the right of disposal of the property in the goods.13. A consideration of the terms of the contract and the letter of credit make it evident that once the bills of lading and documents contemplated under the contract are handed over to the bank to be delivered to the buyer and the seller receives the value thereof as shown in the invoice and in terms of the contract, he no longer retained the property in the goods. The provision that all drafts drawn under the letter of credit are to be treated as advance bills through their Chittagong office do not in any way affect the nature of the transaction inasmuch as they are intended as advance notice to the buyer who may want to make arrangements regarding the taking of delivery or dealing with the goods etc. In fact under the contract it is provided that immediate notice should be given to the buyer as soon as the seller begins to load the goods. In any case under the letter of credit the bank informs the seller that it "guarantees to protect the drawers, endorses and bona fide holders from any consequences which may arise in the event of the non-acceptance or non-payment of the drafts drawn in accordance with the terms of this credit." This clause in the letter of credit further assures the seller of the performance of the contract and does affect the property in the goods passing to the buyer in Pakistan.
|
Special Land Acquisition & Rehabilitation Officer, Sagar Vs. M. S. Seshagiri Rao & Anr | the land at the date of the notification, and the measure of that market value is what a willing purchaser may at the date of the notification under S. 4 pay for the right to the land subject to the option vested in the Government. 4. The High Court also placed reliance upon the judgment of the Madras High Court in State of Madras v. A. Y. S. Parisutha Nadar, 1961-2 Mad LJ 285. In that case the main question decided was whether it was open to a claimant to compensation for land under acquisition to assert title to the land notified for acquisition as against the State Government when the land had become vested in the Government by the operation of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948. On behalf of the State it was contended that once an estate is taken over by the State in exercise of its powers under the Estates Abolition Act, the entire land in the estate so taken over vested in the State in absolute ownership, and that no other claim of ownership in respect of any parcel of the land in the estate could be put forward by any other person as against the State Government without obtaining a ryotwari patta under the machinery of the Act. The High Court rejected that contention observing, that the Government availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject-matter of the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation. The propositions so broadly stated are, in our judgment, not accurate. The Act contemplates acquisition of land for a public purpose. By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided. for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated.The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog. 5. We are unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition. The State in a proceeding for acquisition does not acquire its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and pays compensation equivalent to the market value of that interest. There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restricted interest. 6. We agree with the observations made by Batchelor, J., in Govt. of Bombay v. Usufali Salebhai, (1910) ILR 84 Bom 618 at p. 636 :"The procedure laid down in the Act is so laid down as being appropriate to the special case which is considered in the Act, i. e., the case where the complete interests are owned privately. But that special case is. as I understand it, singled out by the legislature as the norm or type with the intent that in other cases which only partially conform to the type the procedure should be followed in so far as it is appropriate, nor that such cases should be excluded from the Act because they do not wholly conform to the type. In other words; Government *** are not debarred from acquiring and paying for the only outstanding interest, merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land, must be distributed among the claimants. In such circumstances, as it appears to me, there is no insuperable objection to adapting the procedure to the case on the footing that the outstanding interests, which are the only things to be acquired, are the only things to be paid for." The principle of Usufali Salebhais case, (1910) ILR 34 Bom 618 was, it may be observed, approved by this Court in Collector of Bombay v. Nusserwanji Rattanji Mistri 1955 SCR 1311 = (AIR 1955 SC 298 ). 7. But the view expressed by the District Court that the grantees are not entitled to any compensation for the land cannot be sustained. The District Court was bound to determine the market value, at the date of the notification under S. 4 of the Land Acquisition Act of the interest of the grantees in the land. | 1[ds]The High Court rejected that contention observing, that the Government availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject-matter of the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation. The propositions so broadly stated are, in our judgment, not accurate. The Act contemplates acquisition of land for a public purpose. By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided. for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated.The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog5. We are unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition. The State in a proceeding for acquisition does not acquire its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and pays compensation equivalent to the market value of that interest. There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restricted interest7. But the view expressed by the District Court that the grantees are not entitled to any compensation for the land cannot be sustained. The District Court was bound to determine the market value, at the date of the notification under S. 4 of the Land Acquisition Act of the interest of the grantees in the land. | 1 | 1,733 | 566 | ### 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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the land at the date of the notification, and the measure of that market value is what a willing purchaser may at the date of the notification under S. 4 pay for the right to the land subject to the option vested in the Government. 4. The High Court also placed reliance upon the judgment of the Madras High Court in State of Madras v. A. Y. S. Parisutha Nadar, 1961-2 Mad LJ 285. In that case the main question decided was whether it was open to a claimant to compensation for land under acquisition to assert title to the land notified for acquisition as against the State Government when the land had become vested in the Government by the operation of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948. On behalf of the State it was contended that once an estate is taken over by the State in exercise of its powers under the Estates Abolition Act, the entire land in the estate so taken over vested in the State in absolute ownership, and that no other claim of ownership in respect of any parcel of the land in the estate could be put forward by any other person as against the State Government without obtaining a ryotwari patta under the machinery of the Act. The High Court rejected that contention observing, that the Government availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject-matter of the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation. The propositions so broadly stated are, in our judgment, not accurate. The Act contemplates acquisition of land for a public purpose. By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided. for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated.The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog. 5. We are unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition. The State in a proceeding for acquisition does not acquire its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and pays compensation equivalent to the market value of that interest. There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restricted interest. 6. We agree with the observations made by Batchelor, J., in Govt. of Bombay v. Usufali Salebhai, (1910) ILR 84 Bom 618 at p. 636 :"The procedure laid down in the Act is so laid down as being appropriate to the special case which is considered in the Act, i. e., the case where the complete interests are owned privately. But that special case is. as I understand it, singled out by the legislature as the norm or type with the intent that in other cases which only partially conform to the type the procedure should be followed in so far as it is appropriate, nor that such cases should be excluded from the Act because they do not wholly conform to the type. In other words; Government *** are not debarred from acquiring and paying for the only outstanding interest, merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land, must be distributed among the claimants. In such circumstances, as it appears to me, there is no insuperable objection to adapting the procedure to the case on the footing that the outstanding interests, which are the only things to be acquired, are the only things to be paid for." The principle of Usufali Salebhais case, (1910) ILR 34 Bom 618 was, it may be observed, approved by this Court in Collector of Bombay v. Nusserwanji Rattanji Mistri 1955 SCR 1311 = (AIR 1955 SC 298 ). 7. But the view expressed by the District Court that the grantees are not entitled to any compensation for the land cannot be sustained. The District Court was bound to determine the market value, at the date of the notification under S. 4 of the Land Acquisition Act of the interest of the grantees in the land.
### Response:
1
### Explanation:
The High Court rejected that contention observing, that the Government availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject-matter of the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation. The propositions so broadly stated are, in our judgment, not accurate. The Act contemplates acquisition of land for a public purpose. By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided. for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated.The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog5. We are unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition. The State in a proceeding for acquisition does not acquire its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and pays compensation equivalent to the market value of that interest. There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restricted interest7. But the view expressed by the District Court that the grantees are not entitled to any compensation for the land cannot be sustained. The District Court was bound to determine the market value, at the date of the notification under S. 4 of the Land Acquisition Act of the interest of the grantees in the land.
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Commissioner Of Income Tax Vs. Mysodet | than that declared within the period of twelve months referred to in sub-section (1) would be unreasonable; or (ii) that the payment of a dividend or a larger dividend than that declared within the period of twelve months referred to in sub-section (1) would not have resulted in a benefit to the revenue; or (iii) that at least seventy-five per cent of the share capital of the company is throughout the previous year beneficially held by an institution or fund established in India for a charitable purpose the income from dividend whereof is exempt under section 11. (3) If the Central Government is of opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions as may be specified therein, exempt any class of companies to which the provisions of this section apply from the operation of this Section. (4) Without prejudice to the provisions of section 108, nothing contained in this section shall apply to a company which is neither an Indian company nor a company which has made the prescribed arrangements for the declaration and payment of dividends within India." 373 ? 11. As per the Section, an Income Tax Officer, if satisfied that a company in respect of any previous year has not distributed, as required by the statute, dividends from out of its profits and gains, shall make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 143 or 144, be also liable to pay income-tax at the rate provided in that Section. The Calcutta High Court in the case cited above held that loans and advances to the shareholders should be deemed to be dividend under section 2(6A)(e) of the 1992 Act (equivalent to Section 2(22)(e0 of the 1961 Act). Hence, in its opinion, the provision of Section 23A(1) (equivalent to Section 104 of the 1961 Act) is not attracted. Per Contra, the Gujarat High Court in the case referred to above, held that the definition of the word "dividend" as found in Section 2(6A)(e) of the Act will not be applicable for the dividend to be paid under Section 23A(1) of the Act inasmuch as the latter Section contemplates an actual distribution of dividend and nor payment of any sum of money which can be termed as "dividend" by a legal fiction. In the said view of the matter, the Gujarat High Court was of the opinion that even if the company concerned had made any advance or payment which under the Act could be deemed to be a dividend, the same cannot be used as a defence in the proceedings under Section 23A of the Act unless the dividend, as such, has been paid to all the shareholders. 12. With respect, we are unable to agree with the reasoning of the Gujarat High Court. The object of the Legislature in enacting Section 2(22)(e) and Section 104 of the 1961 Act is one and the same, namely, to prevent the escapement of super-tax by some shareholder and/or companies. While under Section 2(22)(e) of the Act, by a deeming provision, the Legislature has made payment of any advance or loan to a shareholder a deemed dividend so as to subject such payments to the levy of super-tax in the hands of the receiver of the said amount, Section 104 of the Act provides for levy of super-tax on companies which attempt to avoid payment of super-tax by its shareholders by not distributing its surplus profits and income. In either case, the object of the Act is to see that evasion of super-tax is prevented. Thus it is clear that the Act did not contemplate the levying of super-tax twice, namely, once in the hands of the shareholder who has received it as a deemed dividend and again in the hands of the Company which, according to the assessing authority, has failed to declare the dividend. 13. The main ground on which the Gujarat High Court based its decision is the difference in the language used in Sections 2(6A)and 23A of the Act. According to the High Court, while in Section 2(6A) the Legislature has used the expression "any payment", in Section 23A it has used the words "gains distributed". In view of such use of two different expressions in these two sections, the High Court came to the conclusion that the deeming provision in Section 2(6A) is not available while invoking Section 23A of the Act. This conclusion of the High Court also in our view is not correct. It is true that the two Sections referred to above have used two different verbs but that by itself, in our opinion, would not take away the effect of the deeming provision found in the definition clause. If actually the Legislature wanted the deeming clause not to be made applicable to the provisions of Section 104 of the 1961 Act then it would have said so in categorical terms in the Statue, in the absence of which the statutory definition given under Sections 2(22)(e) of 1961 Act, in our view, will have to be applied to the word "dividend" as found in Section 104 also. The Gujarat High Court had also placed reliance on a judgment of this Court in the case of Navnit Lal C Javeri v. K.K. Sen, 1965(56) ITR 198. In our view, the ratio laid down in the said judgment could not, in any way, support the ultimate conclusion of the High Court. This Court in the said case was dealing with the constitutionality of Section 23A of the 1922 Act, and was not dealing with the interpretation of Sections 2(6A) and 23A of the said Act. This Court in that case did not have occasion to decide the question that has arisen before us. Hence, the Gujarat High Court could not have got any assistance from the said judgment. | 1[ds]8. In the instant case, during the year under reference, the company had paid a sum of Rs. 1,23,053/to its Managing Director as a loan and the balance amount left with the company was admittedly not sufficient to distribute as dividend among other shareholders. Therefore, the company had contended that in view of the fact that under Section 2(22)(e) of the Income Tax Act, 1961, payment of any advance or loan to a shareholder being a deemed payment of dividend, there was no case for invoking the provision of Section 104 of the Act. As stated above, this contention did not find favour with the assessing and other authorities except the High Court.A perusal of this Section shows that for the purpose of the Act, any payment made by a company of any sum of money by way of advance or loan to its shareholders is deemed to be a dividend. Since the Act has not provided for any other definition of the word "dividend" except the ones enumerated in Section 2(22) of the Act, it should be construed that this definition would be applicable to all provisions that this definition would be applicable to all provisions which contains the term "dividend" in the Act.As per the Section, an Income Tax Officer, if satisfied that a company in respect of any previous year has not distributed, as required by the statute, dividends from out of its profits and gains, shall make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 143 or 144, be also liable to payat the rate provided in that Section. The Calcutta High Court in the case cited above held that loans and advances to the shareholders should be deemed to be dividend under section 2(6A)(e) of the 1992 Act (equivalent to Section 2(22)(e0 of the 1961 Act). Hence, in its opinion, the provision of Section 23A(1) (equivalent to Section 104 of the 1961 Act) is not attracted. Per Contra, the Gujarat High Court in the case referred to above, held that the definition of the word "dividend" as found in Section 2(6A)(e) of the Act will not be applicable for the dividend to be paid under Section 23A(1) of the Act inasmuch as the latter Section contemplates an actual distribution of dividend and nor payment of any sum of money which can be termed as "dividend" by a legal fiction. In the said view of the matter, the Gujarat High Court was of the opinion that even if the company concerned had made any advance or payment which under the Act could be deemed to be a dividend, the same cannot be used as a defence in the proceedings under Section 23A of the Act unless the dividend, as such, has been paid to all the shareholders.With respect, we are unable to agree with the reasoning of the Gujarat High Court. The object of the Legislature in enacting Section 2(22)(e) and Section 104 of the 1961 Act is one and the same, namely, to prevent the escapement ofby some shareholder and/or companies. While under Section 2(22)(e) of the Act, by a deeming provision, the Legislature has made payment of any advance or loan to a shareholder a deemed dividend so as to subject such payments to the levy ofin the hands of the receiver of the said amount, Section 104 of the Act provides for levy ofon companies which attempt to avoid payment ofby its shareholders by not distributing its surplus profits and income. In either case, the object of the Act is to see that evasion ofis prevented. Thus it is clear that the Act did not contemplate the levying oftwice, namely, once in the hands of the shareholder who has received it as a deemed dividend and again in the hands of the Company which, according to the assessing authority, has failed to declare the dividend.The main ground on which the Gujarat High Court based its decision is the difference in the language used in Sections 2(6A)and 23A of the Act. According to the High Court, while in Section 2(6A) the Legislature has used the expression "any payment", in Section 23A it has used the words "gains distributed". In view of such use of two different expressions in these two sections, the High Court came to the conclusion that the deeming provision in Section 2(6A) is not available while invoking Section 23A of the Act. This conclusion of the High Court also in our view is not correct. It is true that the two Sections referred to above have used two different verbs but that by itself, in our opinion, would not take away the effect of the deeming provision found in the definition clause. If actually the Legislature wanted the deeming clause not to be made applicable to the provisions of Section 104 of the 1961 Act then it would have said so in categorical terms in the Statue, in the absence of which the statutory definition given under Sections 2(22)(e) of 1961 Act, in our view, will have to be applied to the word "dividend" as found in Section 104 also. The Gujarat High Court had also placed reliance on a judgment of this Court in the case of Navnit Lal C Javeri v. K.K. Sen, 1965(56) ITR 198. In our view, the ratio laid down in the said judgment could not, in any way, support the ultimate conclusion of the High Court. This Court in the said case was dealing with the constitutionality of Section 23A of the 1922 Act, and was not dealing with the interpretation of Sections 2(6A) and 23A of the said Act. This Court in that case did not have occasion to decide the question that has arisen before us. Hence, the Gujarat High Court could not have got any assistance from the said judgment. | 1 | 2,490 | 1,148 | ### 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:
than that declared within the period of twelve months referred to in sub-section (1) would be unreasonable; or (ii) that the payment of a dividend or a larger dividend than that declared within the period of twelve months referred to in sub-section (1) would not have resulted in a benefit to the revenue; or (iii) that at least seventy-five per cent of the share capital of the company is throughout the previous year beneficially held by an institution or fund established in India for a charitable purpose the income from dividend whereof is exempt under section 11. (3) If the Central Government is of opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions as may be specified therein, exempt any class of companies to which the provisions of this section apply from the operation of this Section. (4) Without prejudice to the provisions of section 108, nothing contained in this section shall apply to a company which is neither an Indian company nor a company which has made the prescribed arrangements for the declaration and payment of dividends within India." 373 ? 11. As per the Section, an Income Tax Officer, if satisfied that a company in respect of any previous year has not distributed, as required by the statute, dividends from out of its profits and gains, shall make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 143 or 144, be also liable to pay income-tax at the rate provided in that Section. The Calcutta High Court in the case cited above held that loans and advances to the shareholders should be deemed to be dividend under section 2(6A)(e) of the 1992 Act (equivalent to Section 2(22)(e0 of the 1961 Act). Hence, in its opinion, the provision of Section 23A(1) (equivalent to Section 104 of the 1961 Act) is not attracted. Per Contra, the Gujarat High Court in the case referred to above, held that the definition of the word "dividend" as found in Section 2(6A)(e) of the Act will not be applicable for the dividend to be paid under Section 23A(1) of the Act inasmuch as the latter Section contemplates an actual distribution of dividend and nor payment of any sum of money which can be termed as "dividend" by a legal fiction. In the said view of the matter, the Gujarat High Court was of the opinion that even if the company concerned had made any advance or payment which under the Act could be deemed to be a dividend, the same cannot be used as a defence in the proceedings under Section 23A of the Act unless the dividend, as such, has been paid to all the shareholders. 12. With respect, we are unable to agree with the reasoning of the Gujarat High Court. The object of the Legislature in enacting Section 2(22)(e) and Section 104 of the 1961 Act is one and the same, namely, to prevent the escapement of super-tax by some shareholder and/or companies. While under Section 2(22)(e) of the Act, by a deeming provision, the Legislature has made payment of any advance or loan to a shareholder a deemed dividend so as to subject such payments to the levy of super-tax in the hands of the receiver of the said amount, Section 104 of the Act provides for levy of super-tax on companies which attempt to avoid payment of super-tax by its shareholders by not distributing its surplus profits and income. In either case, the object of the Act is to see that evasion of super-tax is prevented. Thus it is clear that the Act did not contemplate the levying of super-tax twice, namely, once in the hands of the shareholder who has received it as a deemed dividend and again in the hands of the Company which, according to the assessing authority, has failed to declare the dividend. 13. The main ground on which the Gujarat High Court based its decision is the difference in the language used in Sections 2(6A)and 23A of the Act. According to the High Court, while in Section 2(6A) the Legislature has used the expression "any payment", in Section 23A it has used the words "gains distributed". In view of such use of two different expressions in these two sections, the High Court came to the conclusion that the deeming provision in Section 2(6A) is not available while invoking Section 23A of the Act. This conclusion of the High Court also in our view is not correct. It is true that the two Sections referred to above have used two different verbs but that by itself, in our opinion, would not take away the effect of the deeming provision found in the definition clause. If actually the Legislature wanted the deeming clause not to be made applicable to the provisions of Section 104 of the 1961 Act then it would have said so in categorical terms in the Statue, in the absence of which the statutory definition given under Sections 2(22)(e) of 1961 Act, in our view, will have to be applied to the word "dividend" as found in Section 104 also. The Gujarat High Court had also placed reliance on a judgment of this Court in the case of Navnit Lal C Javeri v. K.K. Sen, 1965(56) ITR 198. In our view, the ratio laid down in the said judgment could not, in any way, support the ultimate conclusion of the High Court. This Court in the said case was dealing with the constitutionality of Section 23A of the 1922 Act, and was not dealing with the interpretation of Sections 2(6A) and 23A of the said Act. This Court in that case did not have occasion to decide the question that has arisen before us. Hence, the Gujarat High Court could not have got any assistance from the said judgment.
### Response:
1
### Explanation:
8. In the instant case, during the year under reference, the company had paid a sum of Rs. 1,23,053/to its Managing Director as a loan and the balance amount left with the company was admittedly not sufficient to distribute as dividend among other shareholders. Therefore, the company had contended that in view of the fact that under Section 2(22)(e) of the Income Tax Act, 1961, payment of any advance or loan to a shareholder being a deemed payment of dividend, there was no case for invoking the provision of Section 104 of the Act. As stated above, this contention did not find favour with the assessing and other authorities except the High Court.A perusal of this Section shows that for the purpose of the Act, any payment made by a company of any sum of money by way of advance or loan to its shareholders is deemed to be a dividend. Since the Act has not provided for any other definition of the word "dividend" except the ones enumerated in Section 2(22) of the Act, it should be construed that this definition would be applicable to all provisions that this definition would be applicable to all provisions which contains the term "dividend" in the Act.As per the Section, an Income Tax Officer, if satisfied that a company in respect of any previous year has not distributed, as required by the statute, dividends from out of its profits and gains, shall make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 143 or 144, be also liable to payat the rate provided in that Section. The Calcutta High Court in the case cited above held that loans and advances to the shareholders should be deemed to be dividend under section 2(6A)(e) of the 1992 Act (equivalent to Section 2(22)(e0 of the 1961 Act). Hence, in its opinion, the provision of Section 23A(1) (equivalent to Section 104 of the 1961 Act) is not attracted. Per Contra, the Gujarat High Court in the case referred to above, held that the definition of the word "dividend" as found in Section 2(6A)(e) of the Act will not be applicable for the dividend to be paid under Section 23A(1) of the Act inasmuch as the latter Section contemplates an actual distribution of dividend and nor payment of any sum of money which can be termed as "dividend" by a legal fiction. In the said view of the matter, the Gujarat High Court was of the opinion that even if the company concerned had made any advance or payment which under the Act could be deemed to be a dividend, the same cannot be used as a defence in the proceedings under Section 23A of the Act unless the dividend, as such, has been paid to all the shareholders.With respect, we are unable to agree with the reasoning of the Gujarat High Court. The object of the Legislature in enacting Section 2(22)(e) and Section 104 of the 1961 Act is one and the same, namely, to prevent the escapement ofby some shareholder and/or companies. While under Section 2(22)(e) of the Act, by a deeming provision, the Legislature has made payment of any advance or loan to a shareholder a deemed dividend so as to subject such payments to the levy ofin the hands of the receiver of the said amount, Section 104 of the Act provides for levy ofon companies which attempt to avoid payment ofby its shareholders by not distributing its surplus profits and income. In either case, the object of the Act is to see that evasion ofis prevented. Thus it is clear that the Act did not contemplate the levying oftwice, namely, once in the hands of the shareholder who has received it as a deemed dividend and again in the hands of the Company which, according to the assessing authority, has failed to declare the dividend.The main ground on which the Gujarat High Court based its decision is the difference in the language used in Sections 2(6A)and 23A of the Act. According to the High Court, while in Section 2(6A) the Legislature has used the expression "any payment", in Section 23A it has used the words "gains distributed". In view of such use of two different expressions in these two sections, the High Court came to the conclusion that the deeming provision in Section 2(6A) is not available while invoking Section 23A of the Act. This conclusion of the High Court also in our view is not correct. It is true that the two Sections referred to above have used two different verbs but that by itself, in our opinion, would not take away the effect of the deeming provision found in the definition clause. If actually the Legislature wanted the deeming clause not to be made applicable to the provisions of Section 104 of the 1961 Act then it would have said so in categorical terms in the Statue, in the absence of which the statutory definition given under Sections 2(22)(e) of 1961 Act, in our view, will have to be applied to the word "dividend" as found in Section 104 also. The Gujarat High Court had also placed reliance on a judgment of this Court in the case of Navnit Lal C Javeri v. K.K. Sen, 1965(56) ITR 198. In our view, the ratio laid down in the said judgment could not, in any way, support the ultimate conclusion of the High Court. This Court in the said case was dealing with the constitutionality of Section 23A of the 1922 Act, and was not dealing with the interpretation of Sections 2(6A) and 23A of the said Act. This Court in that case did not have occasion to decide the question that has arisen before us. Hence, the Gujarat High Court could not have got any assistance from the said judgment.
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Karnati Ravi Vs. Commnr., Survey Settlements And Land Records | Kurian Joseph, J.1. The issue raised in these Appeals pertains to the question whether in the matter of selection and appointment, executive instructions pertaining to the procedure of selection, which is not prescribed under the Rules can rule the field.2. The appellants participated in the selection for appointment as Deputy Surveyor. There is no dispute that all of them possessed the qualification for the post. The procedure for selection was, however, not available under the Rules and, therefore, by executive instructions, it was notified that the participants would be subjected to a written test and also a physical endurance test.3. It is the contention of the appellants that the physical endurance test is not a test prescribed under the Rules, unlike in the case of selection of a Police Constable where it is a prescribed procedure.4. We are afraid this contention cannot be appreciated.5. It may be seen that even a written examination is not a procedure prescribed under the Rules. The Rules only provide the essential qualifications for the post. The method of selection, in the absence of Rules has to be supplied by the executive instructions. All the appellants have appeared in the written examination. They were also subjected to a physical endurance test which they could not qualify. It is, thereafter, the unsuccessful candidates in the physical endurance test put up a challenge regarding the validity of the executive instructions whereby physical endurance test has been prescribed.6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.7. That apart, all the candidates have participated in the selection, both in the written examination, though not a prescribed one, for which there is no objection, as also the physical endurance test. Having participated in the selection without any objection, they cannot later challenge the procedure. | 0[ds]4. We are afraid this contention cannot be appreciated.5. It may be seen that even a written examination is not a procedure prescribed under the Rules. The Rules only provide the essential qualifications for the post. The method of selection, in the absence of Rules has to be supplied by the executive instructions. All the appellants have appeared in the written examination. They were also subjected to a physical endurance test which they could not qualify. It is, thereafter, the unsuccessful candidates in the physical endurance test put up a challenge regarding the validity of the executive instructions whereby physical endurance test has been prescribed.6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.7. That apart, all the candidates have participated in the selection, both in the written examination, though not a prescribed one, for which there is no objection, as also the physical endurance test. Having participated in the selection without any objection, they cannot later challenge the procedure. | 0 | 377 | 232 | ### 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:
Kurian Joseph, J.1. The issue raised in these Appeals pertains to the question whether in the matter of selection and appointment, executive instructions pertaining to the procedure of selection, which is not prescribed under the Rules can rule the field.2. The appellants participated in the selection for appointment as Deputy Surveyor. There is no dispute that all of them possessed the qualification for the post. The procedure for selection was, however, not available under the Rules and, therefore, by executive instructions, it was notified that the participants would be subjected to a written test and also a physical endurance test.3. It is the contention of the appellants that the physical endurance test is not a test prescribed under the Rules, unlike in the case of selection of a Police Constable where it is a prescribed procedure.4. We are afraid this contention cannot be appreciated.5. It may be seen that even a written examination is not a procedure prescribed under the Rules. The Rules only provide the essential qualifications for the post. The method of selection, in the absence of Rules has to be supplied by the executive instructions. All the appellants have appeared in the written examination. They were also subjected to a physical endurance test which they could not qualify. It is, thereafter, the unsuccessful candidates in the physical endurance test put up a challenge regarding the validity of the executive instructions whereby physical endurance test has been prescribed.6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.7. That apart, all the candidates have participated in the selection, both in the written examination, though not a prescribed one, for which there is no objection, as also the physical endurance test. Having participated in the selection without any objection, they cannot later challenge the procedure.
### Response:
0
### Explanation:
4. We are afraid this contention cannot be appreciated.5. It may be seen that even a written examination is not a procedure prescribed under the Rules. The Rules only provide the essential qualifications for the post. The method of selection, in the absence of Rules has to be supplied by the executive instructions. All the appellants have appeared in the written examination. They were also subjected to a physical endurance test which they could not qualify. It is, thereafter, the unsuccessful candidates in the physical endurance test put up a challenge regarding the validity of the executive instructions whereby physical endurance test has been prescribed.6. As we have already noted above, in the absence of the Rules, it is well within the powers of the Executive under Article 162 of the Constitution to provide for the required instructions with regard to the procedure for selection, so long as they do not come in conflict with the Rules.7. That apart, all the candidates have participated in the selection, both in the written examination, though not a prescribed one, for which there is no objection, as also the physical endurance test. Having participated in the selection without any objection, they cannot later challenge the procedure.
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Budhram Kashiram Vs. State Of Bihar | account of aggregate sales to registered dealers for reasons given by it is legally valid." 2. The assessee-appellant is a registered dealer under the Act. The assessments with which we are concerned in these cases relate to the periods November 2, 1956, to March 31, 1957, 1957-58 and 1958-59. The assessee was assessed to tax for the first two periods on September 20, 1957, and June 19, 1958, respectively. Subsequently on June 24, 1959, some of its books were seized and on the basis of the information got from those books, reassessment proceedings commenced for the periods it was assessed. At the same time assessment proceedings for the period 1938-59 were taken against it. In all those proceedings the assessee claimed deduction from its taxable turnover, the turnover relating to its sales to registered dealers. This it claimed under the explanation to section 5 of the Act. The assessing authority rejected its contention holding that as those sales did not comply with the requirements of rule 18 of the Rules framed under the Act, the assessee was not entitled to the deduction claimed by it. Explanation to section 5 reads thus : "The expression taxable turnover, for the purposes of this section, means that part of a dealers gross turnover on sales which have taken place in Bihar during any period, which remains after deducting therefrom -(a) * * * * (ii) sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him or for use by him in the execution of any contract and on sales to a registered dealer of containers and other materials for the packing of such goods : Provided that where any goods specified in the certificate of registration are purchased by a registered dealer as being intended for resale by him or for use by him in the execution of a contract, but are utilised by him for any other purpose, the price of the goods so purchased shall be allowed to be deducted from the gross turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer." 3. Rule 18 of the Rules framed under the Act reads : "A dealer who wishes to deduct from his gross turnover the amount of a cash sale to registered dealers shall produce, in respect of such a sale, the copy of the relevant cash memo., and a true declaration in writing by the purchasing dealer or by such responsible officer as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the certificate of registration of such dealer and are required by such dealer either for use in the execution of any contract or for resale." 4. There is no dispute that the sales in question did not comply with the requirements of rule 18. But the assessees contention is that the non-compliance of that rule does not disentitle him to have the benefit of explanation to section 5. That contention was rejected by the assessing authority but on appeal the Deputy Commissioner of Commercial Taxes remanded the proceedings to the Assistant Commissioner of Commercial Taxes to rehear and decide on some of the contentions raised by the assessee. As against those orders of the Deputy Commissioner, Commercial Taxes, the assessee took up the matter in revision to the Board of Revenue. The Board of Revenue came to the conclusion that the compliance with the requirements of rule 18 is mandatory and the assessees failure to comply with those requirements disentitled it to have the benefit of explanation to section 5. But on certain other matters with which we are not concerned now, it directed the Assistant Commissioner of Commercial Taxes to enquire into the grievances of the assessee. Before the Assistant Commissioner of Commercial Taxes, the assessee again took up the plea that the turnover relating to the sales made by it to the registered dealers should be excluded in computing its taxable turnover. The Assistant Commissioner rejected that contention on the ground that the same was concluded by the order of the Board of Revenue. The assessees appeal to the Deputy Commissioner, Commercial Taxes, was unsuccessful. Thereafter he took up the matter in revision to the Sales Tax Tribunal which by the time had taken over the revisional powers of the Board of Revenue. The Tribunal rejected the plea of the assessee solely on the ground that the matter was concluded by the decision of the Board of Revenue referred to earlier. In that view the Tribunal did not take into consideration the decision of this court in State of Orissa v. M. A. Tulloch ([1964] 15 S.T.C. 641 (S.C.); (1964) 7 S.C.R. 816). The Appellate Tribunal also rejected the application of the assessee to refer the question mentioned earlier to the High Court for its opinion. As mentioned earlier the assessees application under section 25(2) of the Act was summarily dismissed by the High Court.There can be hardly any doubt that the question whether the assessee is entitled to deduct under the provisions of the Act from his total turnover, the turnover relating to the sales to the registered dealers is a question of law. But the High Court before deciding that question, may have to decide whether the decision on that question is barred in view of the decision of the Board of Revenue referred to earlier. The question of law formulated by the assessee is broad enough to include that question also. But, if the High Court so decides it can split the question into two questions, i.e., (1) whether in view of the decision of the Board of Revenue in the revision petition filed by the assessee, it is open to the assessee to claim the deduction asked for and (2) if that decision does not bar the assessees plea, is the assessee in law entitled to claim the deduction in question. 5. | 1[ds]As mentioned earlier the assessees application under section 25(2) of the Act was summarily dismissed by the High Court.There can be hardly any doubt that the question whether the assessee is entitled to deduct under the provisions of the Act from his total turnover, the turnover relating to the sales to the registered dealers is a question of law. But the High Court before deciding that question, may have to decide whether the decision on that question is barred in view of the decision of the Board of Revenue referred to earlier. The question of law formulated by the assessee is broad enough to include that question also. But, if the High Court so decides it can split the question into two questions, i.e., (1) whether in view of the decision of the Board of Revenue in the revision petition filed by the assessee, it is open to the assessee to claim the deduction asked for and (2) if that decision does not bar the assessees plea, is the assessee in law entitled to claim the deduction in question. | 1 | 1,181 | 201 | ### Instruction:
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account of aggregate sales to registered dealers for reasons given by it is legally valid." 2. The assessee-appellant is a registered dealer under the Act. The assessments with which we are concerned in these cases relate to the periods November 2, 1956, to March 31, 1957, 1957-58 and 1958-59. The assessee was assessed to tax for the first two periods on September 20, 1957, and June 19, 1958, respectively. Subsequently on June 24, 1959, some of its books were seized and on the basis of the information got from those books, reassessment proceedings commenced for the periods it was assessed. At the same time assessment proceedings for the period 1938-59 were taken against it. In all those proceedings the assessee claimed deduction from its taxable turnover, the turnover relating to its sales to registered dealers. This it claimed under the explanation to section 5 of the Act. The assessing authority rejected its contention holding that as those sales did not comply with the requirements of rule 18 of the Rules framed under the Act, the assessee was not entitled to the deduction claimed by it. Explanation to section 5 reads thus : "The expression taxable turnover, for the purposes of this section, means that part of a dealers gross turnover on sales which have taken place in Bihar during any period, which remains after deducting therefrom -(a) * * * * (ii) sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him or for use by him in the execution of any contract and on sales to a registered dealer of containers and other materials for the packing of such goods : Provided that where any goods specified in the certificate of registration are purchased by a registered dealer as being intended for resale by him or for use by him in the execution of a contract, but are utilised by him for any other purpose, the price of the goods so purchased shall be allowed to be deducted from the gross turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer." 3. Rule 18 of the Rules framed under the Act reads : "A dealer who wishes to deduct from his gross turnover the amount of a cash sale to registered dealers shall produce, in respect of such a sale, the copy of the relevant cash memo., and a true declaration in writing by the purchasing dealer or by such responsible officer as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the certificate of registration of such dealer and are required by such dealer either for use in the execution of any contract or for resale." 4. There is no dispute that the sales in question did not comply with the requirements of rule 18. But the assessees contention is that the non-compliance of that rule does not disentitle him to have the benefit of explanation to section 5. That contention was rejected by the assessing authority but on appeal the Deputy Commissioner of Commercial Taxes remanded the proceedings to the Assistant Commissioner of Commercial Taxes to rehear and decide on some of the contentions raised by the assessee. As against those orders of the Deputy Commissioner, Commercial Taxes, the assessee took up the matter in revision to the Board of Revenue. The Board of Revenue came to the conclusion that the compliance with the requirements of rule 18 is mandatory and the assessees failure to comply with those requirements disentitled it to have the benefit of explanation to section 5. But on certain other matters with which we are not concerned now, it directed the Assistant Commissioner of Commercial Taxes to enquire into the grievances of the assessee. Before the Assistant Commissioner of Commercial Taxes, the assessee again took up the plea that the turnover relating to the sales made by it to the registered dealers should be excluded in computing its taxable turnover. The Assistant Commissioner rejected that contention on the ground that the same was concluded by the order of the Board of Revenue. The assessees appeal to the Deputy Commissioner, Commercial Taxes, was unsuccessful. Thereafter he took up the matter in revision to the Sales Tax Tribunal which by the time had taken over the revisional powers of the Board of Revenue. The Tribunal rejected the plea of the assessee solely on the ground that the matter was concluded by the decision of the Board of Revenue referred to earlier. In that view the Tribunal did not take into consideration the decision of this court in State of Orissa v. M. A. Tulloch ([1964] 15 S.T.C. 641 (S.C.); (1964) 7 S.C.R. 816). The Appellate Tribunal also rejected the application of the assessee to refer the question mentioned earlier to the High Court for its opinion. As mentioned earlier the assessees application under section 25(2) of the Act was summarily dismissed by the High Court.There can be hardly any doubt that the question whether the assessee is entitled to deduct under the provisions of the Act from his total turnover, the turnover relating to the sales to the registered dealers is a question of law. But the High Court before deciding that question, may have to decide whether the decision on that question is barred in view of the decision of the Board of Revenue referred to earlier. The question of law formulated by the assessee is broad enough to include that question also. But, if the High Court so decides it can split the question into two questions, i.e., (1) whether in view of the decision of the Board of Revenue in the revision petition filed by the assessee, it is open to the assessee to claim the deduction asked for and (2) if that decision does not bar the assessees plea, is the assessee in law entitled to claim the deduction in question. 5.
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As mentioned earlier the assessees application under section 25(2) of the Act was summarily dismissed by the High Court.There can be hardly any doubt that the question whether the assessee is entitled to deduct under the provisions of the Act from his total turnover, the turnover relating to the sales to the registered dealers is a question of law. But the High Court before deciding that question, may have to decide whether the decision on that question is barred in view of the decision of the Board of Revenue referred to earlier. The question of law formulated by the assessee is broad enough to include that question also. But, if the High Court so decides it can split the question into two questions, i.e., (1) whether in view of the decision of the Board of Revenue in the revision petition filed by the assessee, it is open to the assessee to claim the deduction asked for and (2) if that decision does not bar the assessees plea, is the assessee in law entitled to claim the deduction in question.
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BBR (INDIA) PRIVATE LIMITED Vs. S.P. SINGLA CONSTRUCTIONS PRIVATE LIMITED | placing the supervisory jurisdiction over all arbitration proceedings in connection with the arbitration proceedings with one court exclusively. The aforesaid observation supports our reasoning that once the jurisdictional seat of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, the seat cannot be changed. Therefore, the appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional seat already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held. 30. We would now reproduce paragraph 59 of the judgment in BGS SGS Soma (supra), which examines Section 42 of the Act and reads as under: 59. Equally incorrect is the finding in Antrix Corpn. Ltd. that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one court exclusively. This is why the section begins with a non obstante clause, and then goes on to state … where with respect to an arbitration agreement any application under this part has been made in a court… It is obvious that the application made under this part to a court must be a court which has jurisdiction to decide such application. The subsequent holdings of this court, that where a seat is designated in an agreement, the courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the court where the seat is located, and that court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a court in which a part of the cause of action arises would then be the exclusive court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 31. We have already referred to the first few sentences of the aforementioned paragraph and explained the reasoning in the context of the present case. The paragraph BGS SGS Soma (supra) also explains the non-obstante effect as incorporated in Section 42 to hold that it is evident that the application made under Part-I must be to a court which has a jurisdiction to decide such application. Where the seat is designated in the agreement, the courts of the seat alone will have the jurisdiction. Thus, all applications under Part-I will be made in the court where the seat is located as that court would alone have jurisdiction over the arbitration proceedings and all subsequent proceedings arising out of the arbitration proceedings. The quotation also clarifies that when either no seat is designated by an agreement, or the so- called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. An application under Section 9 of the Act may be preferred before the court in which a part of cause of action arises in the case where parties had not agreed on the seat of arbitration. This is possible in the absence of an agreement fixing the seat, as an application under Section 9 may be filed before the seat is determined by the arbitral tribunal under Section 20(2) of the Act. Consequently, in such situations, the court where the earliest application has been made, being the court in which a part or entire of the cause of action arises, would then be the exclusive court under Section 42 of the Act. Accordingly, such a court would have control over the arbitration proceedings (We are not examining and are not required to decide the question- whether there is a difference between the expression court and the Chief Justice or his nominee in the present case). 32. Section 42 is to no avail as it does not help the case propounded by the appellant, as in the present case the arbitrator had fixed the jurisdictional seat under Section 20(2) of the Act before any party had moved the court under the Act, being a court where a part or whole of the cause of action had arisen. The appellant had moved the Delhi High Court under Section 34 of the Act after the arbitral tribunal vide the order dated 5th August 2014 had fixed the jurisdictional seat at Panchkula in Haryana. Consequently, the appellant cannot, based on fastest finger first principle, claim that the courts in Delhi get exclusive jurisdiction in view of Section 42 of the Act. The reason is simple that before the application under Section 34 was filed, the jurisdictional seat of arbitration had been determined and fixed under sub-section (2) to Section 20 and thereby, the courts having jurisdiction over Panchkula in Haryana, have exclusive jurisdiction. The courts in Delhi would not get jurisdiction as the jurisdictional seat of arbitration is Panchkula and not Delhi. | 0[ds]15. Interpretation of the term court, as defined in sub-clause (e) to sub-section (1) of Section 2 of the Act, had come up for consideration before a Constitutional Bench of five Judges in the case of Bhartiya Aluminium Company v. Kaiser Aluminium Technical Services Inc (2012) 9 SCC 552 ; BALCO case, for short, which decision had examined the distinction between jurisdictional seat and venue in the context of international arbitration, to hold that the expression seat of arbitration is the centre of gravity in arbitration. However, this does not mean that all arbitration proceedings must take place at the seat. The arbitrators at times hold meetings at more convenient locations. Regarding the expression court, it was observed that Section 2(2) of the Act does not make Part-I applicable to arbitrations seated outside India. The expressions used in Section 2(2) (See paragraph 20 below ........ provisions of Part II of this Act.) of the Act do not permit an interpretation to hold that Part-I would also apply to arbitrations held outside the territory of India. Noticing the above interpretation, a three Judges Bench of this Court in BGS SGS Soma JV v. NHPC Limited (2020) 4 SCC 224 has observed that the expression subject to arbitration used in clause (e) to sub-section (1) of Section 2 of the Act cannot be confused with the subject matter of the suit. The term subject matter of the suit in the said provision is confined to Part-I. The purpose of the clause is to identify the courts having supervisory control over the judicial proceedings. Hence, the clause refers to a court which would be essentially a court of the seat of the arbitration process. Accordingly, clause (e) to sub-section (1) of Section 2 has to be construed keeping in view the provisions of Section 20 of the Act, which are, in fact, determinative and relevant when we decide the question of the seat of an arbitration. This interpretation recognises the principle of party autonomy, which is the edifice of arbitration. In other words, the term court as defined in clause (e) to sub-section (1) of Section 2, which refers to the subject matter of arbitration, is not necessarily used as finally determinative of the courts territorial jurisdiction to entertain proceedings under the Act. In BGS SGS Soma (supra), this Court observed that any other construction of the provisions would render Section 20 of the Act nugatory. In view of the Court, the legislature had given jurisdiction to two courts: the court which should have jurisdiction where the cause of action is located; and the court where the arbitration takes place. This is necessary as, on some occasions, the agreement may provide the seat of arbitration that would be neutral to both the parties. The courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. The seat of arbitration need not be the place where any cause of action has arisen, in the sense that the seat of arbitration may be different from the place where obligations are/had to be performed under the contract. In such circumstances, both the courts should have jurisdiction, viz., the courts within whose jurisdiction the subject matter of the suit is situated and the courts within whose jurisdiction the dispute resolution forum, that is, where the arbitral tribunal is located.17. Relying upon the Constitutional Bench decision in BALCO (supra), in BGS SGS Soma (supra), it has been held that sub- section (3) of Section 20 refers to venue whereas the place mentioned in sub-section (1) and sub-section (2) refers to the jurisdictional seat. To explain the difference, in BALCO (supra), a case relating to international arbitration, reference was made to several judgments, albeit the judgment in Shashoua v. Sharma (2009) EWHC 957 (Comm.) was extensively quoted to observe that an agreement as to the seat of arbitration draws in the law of that country as the curial law and is analogous to an exclusive jurisdiction clause (Court of appeal decision in C v. D, 2007 EWCA Civ 1282 (CA)). The parties that have agreed to the seat must challenge an interim or final award only in the courts of the place designated as the seat of arbitration. In other words, the choice of the seat of arbitration must be the choice of a forum/court for remedies seeking to attack the award.18. The aforesaid principles relating to international arbitration have been applied to domestic arbitrations. In this regard, we may refer to paragraph 38 of BGS SGS Soma (supra), which reads as under:38. A reading of paras 75, 76, 96, 110, 116, 123 and 194 of BALCO would show that where parties have selected the seat of arbitration in their agreement, such selection would then amount to an exclusive jurisdiction clause, as the parties have now indicated that the courts at the seat would alone have jurisdiction to entertain challenges against the arbitral award which have been made at the seat. The example given in para 96 buttresses this proposition, and is supported by the previous and subsequent paragraphs pointed out hereinabove. The BALCO judgment, when read as a whole, applies the concept of seat as laid down by the English judgments (and which is in Section 20 of the Arbitration Act, 1996), by harmoniously construing Section 20 with Section 2(1)(e), so as to broaden the definition of court, and bring within its ken courts of the seat of the arbitration.19. The Court in BGS SGS Soma (supra), then proceeded to examine the contention whether paragraph 96 of BALCO (supra), which speaks of concurrent jurisdiction of the courts, that is, the jurisdiction of courts where the cause of action has arisen wholly or partly, and the courts within the jurisdiction in which the dispute resolution forum – arbitration is located, to observe and elucidate the legal position:40. Para 96 of BALCO case is in several parts. First and foremost, Section 2(1)(e), which is the definition of court under the Arbitration Act, 1996 was referred to, and was construed keeping in view the provisions in Section 20 of the Arbitration Act, 1996, which give recognition to party autonomy in choosing the seat of the arbitration proceedings. Secondly, the Court went on to state in two places in the said paragraph that jurisdiction is given to two sets of courts, namely, those courts which would have jurisdiction where the cause of action is located; and those courts where the arbitration takes place. However, when it came to providing a neutral place as the seat of arbitration proceedings, the example given by the five-Judge Bench made it clear that appeals under Section 37 of the Arbitration Act, 1996 against interim orders passed under Section 17 of the Arbitration Act, 1996 would lie only to the courts of the seat — which is Delhi in that example — which are the courts having supervisory control, or jurisdiction, over the arbitration proceedings. The example then goes on to state that this would be irrespective of the fact that the obligations to be performed under the contract, that is the cause of action, may arise in part either at Mumbai or Kolkata. The fact that the arbitration is to take place in Delhi is of importance. However, the next sentence in the said paragraph reiterates the concurrent jurisdiction of both courts.20. BGS SGS Soma (supra) extensively refers to the judgment of this Court in Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Others (2017) 7 SCC 678, which decision refers to the legislative history of Section 2(1)(e) and Section 20 of the Act and the recommendations of the 246th Law Commission Report, 2014. These recommendations, it is observed, were not implemented in consonance with the decision in BALCO (supra), which, in no uncertain terms, refers to the place as the jurisdictional seat for the purpose of clause (e) to sub-section (2) of Section 2 of the Act. This judgment was subsequently followed in Brahmani River Pellets Limited v. Kamachi Industries Limited (2020) 5 SCC 462 . It may, however, be noted that clause (e) to sub-section (1) of Section 2 was amended by inserting sub-clause (ii) [(ii) in the case of international .......subordinate to that High Court;] with the specific objective to solve the problem of conflict of jurisdiction that would arise in cases where interim measures are sought in India in cases of arbitration seated outside India. In the context of domestic arbitrations it must be held that once the seat of arbitration has been fixed, then the courts at the said location alone will have exclusive jurisdiction to exercise the supervisory powers over the arbitration. The courts at other locations would not have jurisdiction, including the courts where cause of action has arisen. As observed above and held in BGS SGS Soma (supra), and Indus Mobile (supra), (In Indus Mobile Distribution (P) Ltd.,.........agreement between the parties) the moment the parties by agreement designate the seat, it becomes akin to an exclusive jurisdiction clause. It would then vest the courts at the seat with exclusive jurisdiction to regulate arbitration proceedings arising out of the agreement between the parties.21. The Court in BGS SGS Soma (supra) has also dealt with the situation where the parties have not agreed on or have not fixed the jurisdictional seat of arbitration, and has laid down the following test to determine the seat of arbitration which would determine the location of the court that would exercise supervisory jurisdiction. The test is simple and reads:61. It will thus be seen that wherever there is an express designation of a venue, and no designation of any alternative place as the seat, combined with a supranational body of rules governing the arbitration, and no other significant contrary indicia, the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitral proceeding.For formulating the test reference was made to several Indian and foreign judgments to emphasise that where the parties had failed to choose the jurisdictional seat (BGS SGS Soma (supra) case also examines and explains case law where the courts have held that so called seat mentioned in the agreement is convenient venue an aspect with which we are not concerned in the present case) which would be governing the arbitral proceedings, the proceedings must be considered at any rate prima facie as being governed and subject to jurisdiction of the court where the arbitration is being held, on the ground that the said court is most likely to be connected with the proceedings (See the principle culled out by Dicey and Morris on the Conflict of Laws, 11th Edition). Accordingly, in BGS SGS Soma (supra), the law as applicable, where the parties by agreement have not fixed the jurisdictional seat, is crystallised as under:82. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the venue of the arbitration proceedings, the expression arbitration proceedings would make it clear that the venue is really the seat of the arbitral proceedings, as the aforesaid expression does not include just one or more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. This language has to be contrasted with language such as tribunals are to meet or have witnesses, experts or the parties where only hearings are to take place in the venue, which may lead to the conclusion, other things being equal, that the venue so stated is not the seat of arbitral proceedings, but only a convenient place of meeting. Further, the fact that the arbitral proceedings shall be held at a particular venue would also indicate that the parties intended to anchor arbitral proceedings to a particular place, signifying thereby, that that place is the seat of the arbitral proceedings. This, coupled with there being no other significant contrary indicia that the stated venue is merely a venue and not the seat of the arbitral proceedings, would then conclusively show that such a clause designates a seat of the arbitral proceedings. In an international context, if a supranational body of rules is to govern the arbitration, this would further be an indicia that the venue, so stated, would be the seat of the arbitral proceedings. In a national context, this would be replaced by the Arbitration Act, 1996 as applying to the stated venue, which then becomes the seat for the purposes of arbitration.22. BGS SGS Soma (supra) also refers to decision of this Court in Union of India v. Hardy Exploration and Production (India) Inc. [(2019) 13 SCC 472 – In this case the parties had not chosen the seat of arbitration and the arbitral tribunal had also not determined the seat of arbitration. Therefore it was held that the choice of Kuala Lumpur as the venue of arbitration did not imply that Kuala Lumpur had become the seat of arbitration], which had held that the choice of the venue of arbitration did not imply that it had become the seat of arbitration and that the venue could not by itself assume the status of the seat; instead a venue could become the seat only if something else is added to it as a concomitant. According to BGS SGS Soma (supra), the reasoning given in Hardy Exploration (supra) is per incuriam as it contradicts the ratio and law laid down in BALCO (supra). Hence, BGS SGS Soma (supra) holds that it would be correct to hold that while exercising jurisdiction under sub-section (2) of Section 20 of the Act, an arbitrator is not to pass a detailed or a considered decision. The place where the arbitral tribunal holds the arbitration proceedings would, by default, be the venue of arbitration and consequently the seat of arbitration.23. When we turn to the facts of the present case, if the arbitration proceedings were held throughout in Panchkula, there would have been no difficulty in holding that Delhi is not the jurisdictional seat. But that was not to be, as on recusal of Mr. Justice (Retd.) N.C. Jain and post the appointment of Mr. Justice (Retd.) T.S.Doabia arbitration proceedings were held at Delhi. In the context of the present case and noticing the first order passed by the arbitral tribunal on 5th August 2014 stipulating that the place of the proceedings would be Panchkula in Haryana and in the absence of other significant indica on application of Section 20(2) of the Act, the city of Panchkula in Haryana would be the jurisdictional seat of arbitration. As the seat was fixed vide the order dated 5th August, 2014, the courts in Delhi would not have jurisdiction.This, in the context of the decision in Inox Renewables Ltd (supra), is undoubtedly correct, but the aforesaid decision cannot be read as a precept in cases governed by sub- section (2) of Section 20 of the Act. Inox Renewables (supra) was a case governed under sub-section (1) of Section 20 of the Act, that is, where parties by the agreement had fixed the jurisdictional seat at Jaipur, Rajasthan, but thereafter, by mutual consent, had decided to change the venue of proceedings to Ahmedabad prior to the commencement of the arbitration. This evidently resulted in the decision of this Court accepting that the jurisdictional seat of arbitration was Ahmedabad. This decision would apply in case the parties, by consent, agree mutually that the seat of arbitration would be located at a particular place. The said exercise would be in terms of sub-section (1) of Section 20 of the Act, which endorses and emphasises on party autonomy and choice that determines the seat of arbitration. It would not apply when the arbitrator fixes the seat in terms of sub-section (2) of Section 20 of the Act. Once the arbitrator fixes the seat in terms of sub- section (2) of Section 20 of the Act, the arbitrator cannot change the seat of the arbitration, except when and if the parties mutually agree and state that the seat of arbitration should be changed to another location, which is not so in the present case.25. There are good reasons why we feel that subsequent hearings or proceedings at a different location other than the place fixed by the arbitrator as the seat of arbitration should not be regarded and treated as a change or relocation of jurisdictional seat. This would, in our opinion, lead to uncertainty and confusion resulting in avoidable esoteric and hermetic litigation as to the jurisdictional seat of arbitration. The seat once fixed by the arbitral tribunal under Section 20(2), should remain static and fixed, whereas the venue of arbitration can change and move from the seat to a new location. Venue is not constant and stationary and can move and change in terms of sub-section (3) to Section 20 of the Act. Change of venue does not result in change or relocation of the seat of arbitration.26. It is highly desirable in commercial matters, in fact in all cases, that there should be certainty as to the court that should exercise jurisdiction. We do not think the law of arbitration visualises repeated or constant shifting of the seat of arbitration. In fact, sub-section (3) of Section 20 specifically states and draws a distinction between the venue of arbitration and the seat of arbitration by stating that for convenience and other reasons, the arbitration proceedings may be held at a place different than the seat of arbitration, which location is referred to the venue of arbitration. If we accept this contention of the appellant, we would, as observed in the case of C v. D (supra), create a recipe for litigation and (what is worse) confusion which was not intended by the Act. The place of jurisdiction or the seat must be certain and static and not vague or changeable, as the parties should not be in doubt as to the jurisdiction of the courts for availing of judicial remedies. Further, there would be a risk of parties rushing to the courts to get first hearing or conflicting decisions that the law does not contemplate and is to be avoided.27. A secondary contention to support the said plea on the ground that the courts where arbitration proceedings are being conducted should be given supervisory powers, on in-depth consideration, must be rejected as feeble when we juxtapose the unacceptable practicable consequences that emerge. Exercise of supervisory jurisdiction by the courts where the arbitration proceedings are being conducted is a relevant consideration, but not a conclusive and determinative factor when the venue is not the seat. The seat determines the jurisdiction of the courts. There would be situations where the venue of arbitration in terms of sub-section (3) of Section 20 would be different from the place of the jurisdictional seat, and it is equally possible majority or most of the hearing may have taken place at a venue which is different from the seat of arbitration. Further, on balance, we find that the aspect of certainty as to the courts jurisdiction must be given and accorded priority over the contention that the supervisory courts located at the place akin to the venue where the arbitration proceedings were conducted or substantially conducted should be preferred.On deeper consideration, this argument should be rejected for the reasons recorded above, as it will lead to confusion and uncertainty. The legal question raised in the present case must be answered objectively and not subjectively with reference to the facts of a particular case. Otherwise, there would be a lack of clarity and consequent mix-up about the courts that would exercise jurisdiction. There could be cases where the arbitration proceedings are held at different locations, but the seat of arbitration, as agreed by the parties or as determined by the arbitrator, may be different, and at that place – the seat, only a few hearings or initial proceedings may have been held. This would not matter and would not result in shifting of the jurisdictional seat. Arbitrators can fix the place of residence, place of work, or in case of recusal, arbitration proceedings may be held at two different places, as in the present case. For clarity and certainty, which is required when the question of territorial jurisdiction arises, we would hold that the place or the venue fixed for arbitration proceedings, when sub-section (2) of Section 20 applies, will be the jurisdictional seat and the courts having jurisdiction over the jurisdictional seat would have exclusive jurisdiction. This principle would have exception that would apply when by mutual consent the parties agree that the jurisdictional seat should be changed, and such consent must be express and clearly understood and agreed by the parties.29. We have quoted Section 42 of the Act. Section 42 was also examined in BGS SGS Soma (supra) and the view expressed by the Delhi High Court in Antrix Corpn. Ltd. v. Devas Multimedia (P) Ltd. (2018) SCC OnLine Del 9338 was overruled observing that the Section 42 is meant to avoid conflicts of jurisdiction of courts by placing the supervisory jurisdiction over all arbitration proceedings in connection with the arbitration proceedings with one court exclusively. The aforesaid observation supports our reasoning that once the jurisdictional seat of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, the seat cannot be changed. Therefore, the appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional seat already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held.30. We would now reproduce paragraph 59 of the judgment in BGS SGS Soma (supra), which examines Section 42 of the Act and reads as under:59. Equally incorrect is the finding in Antrix Corpn. Ltd. that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one court exclusively. This is why the section begins with a non obstante clause, and then goes on to state … where with respect to an arbitration agreement any application under this part has been made in a court… It is obvious that the application made under this part to a court must be a court which has jurisdiction to decide such application. The subsequent holdings of this court, that where a seat is designated in an agreement, the courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the court where the seat is located, and that court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a court in which a part of the cause of action arises would then be the exclusive court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled.31. We have already referred to the first few sentences of the aforementioned paragraph and explained the reasoning in the context of the present case. The paragraph BGS SGS Soma (supra) also explains the non-obstante effect as incorporated in Section 42 to hold that it is evident that the application made under Part-I must be to a court which has a jurisdiction to decide such application. Where the seat is designated in the agreement, the courts of the seat alone will have the jurisdiction. Thus, all applications under Part-I will be made in the court where the seat is located as that court would alone have jurisdiction over the arbitration proceedings and all subsequent proceedings arising out of the arbitration proceedings. The quotation also clarifies that when either no seat is designated by an agreement, or the so- called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. An application under Section 9 of the Act may be preferred before the court in which a part of cause of action arises in the case where parties had not agreed on the seat of arbitration. This is possible in the absence of an agreement fixing the seat, as an application under Section 9 may be filed before the seat is determined by the arbitral tribunal under Section 20(2) of the Act. Consequently, in such situations, the court where the earliest application has been made, being the court in which a part or entire of the cause of action arises, would then be the exclusive court under Section 42 of the Act. Accordingly, such a court would have control over the arbitration proceedings (We are not examining and are not required to decide the question- whether there is a difference between the expression court and the Chief Justice or his nominee in the present case).32. Section 42 is to no avail as it does not help the case propounded by the appellant, as in the present case the arbitrator had fixed the jurisdictional seat under Section 20(2) of the Act before any party had moved the court under the Act, being a court where a part or whole of the cause of action had arisen. The appellant had moved the Delhi High Court under Section 34 of the Act after the arbitral tribunal vide the order dated 5th August 2014 had fixed the jurisdictional seat at Panchkula in Haryana. Consequently, the appellant cannot, based on fastest finger first principle, claim that the courts in Delhi get exclusive jurisdiction in view of Section 42 of the Act. The reason is simple that before the application under Section 34 was filed, the jurisdictional seat of arbitration had been determined and fixed under sub-section (2) to Section 20 and thereby, the courts having jurisdiction over Panchkula in Haryana, have exclusive jurisdiction. The courts in Delhi would not get jurisdiction as the jurisdictional seat of arbitration is Panchkula and not Delhi. | 0 | 7,242 | 5,080 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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placing the supervisory jurisdiction over all arbitration proceedings in connection with the arbitration proceedings with one court exclusively. The aforesaid observation supports our reasoning that once the jurisdictional seat of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, the seat cannot be changed. Therefore, the appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional seat already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held. 30. We would now reproduce paragraph 59 of the judgment in BGS SGS Soma (supra), which examines Section 42 of the Act and reads as under: 59. Equally incorrect is the finding in Antrix Corpn. Ltd. that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one court exclusively. This is why the section begins with a non obstante clause, and then goes on to state … where with respect to an arbitration agreement any application under this part has been made in a court… It is obvious that the application made under this part to a court must be a court which has jurisdiction to decide such application. The subsequent holdings of this court, that where a seat is designated in an agreement, the courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the court where the seat is located, and that court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a court in which a part of the cause of action arises would then be the exclusive court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 31. We have already referred to the first few sentences of the aforementioned paragraph and explained the reasoning in the context of the present case. The paragraph BGS SGS Soma (supra) also explains the non-obstante effect as incorporated in Section 42 to hold that it is evident that the application made under Part-I must be to a court which has a jurisdiction to decide such application. Where the seat is designated in the agreement, the courts of the seat alone will have the jurisdiction. Thus, all applications under Part-I will be made in the court where the seat is located as that court would alone have jurisdiction over the arbitration proceedings and all subsequent proceedings arising out of the arbitration proceedings. The quotation also clarifies that when either no seat is designated by an agreement, or the so- called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. An application under Section 9 of the Act may be preferred before the court in which a part of cause of action arises in the case where parties had not agreed on the seat of arbitration. This is possible in the absence of an agreement fixing the seat, as an application under Section 9 may be filed before the seat is determined by the arbitral tribunal under Section 20(2) of the Act. Consequently, in such situations, the court where the earliest application has been made, being the court in which a part or entire of the cause of action arises, would then be the exclusive court under Section 42 of the Act. Accordingly, such a court would have control over the arbitration proceedings (We are not examining and are not required to decide the question- whether there is a difference between the expression court and the Chief Justice or his nominee in the present case). 32. Section 42 is to no avail as it does not help the case propounded by the appellant, as in the present case the arbitrator had fixed the jurisdictional seat under Section 20(2) of the Act before any party had moved the court under the Act, being a court where a part or whole of the cause of action had arisen. The appellant had moved the Delhi High Court under Section 34 of the Act after the arbitral tribunal vide the order dated 5th August 2014 had fixed the jurisdictional seat at Panchkula in Haryana. Consequently, the appellant cannot, based on fastest finger first principle, claim that the courts in Delhi get exclusive jurisdiction in view of Section 42 of the Act. The reason is simple that before the application under Section 34 was filed, the jurisdictional seat of arbitration had been determined and fixed under sub-section (2) to Section 20 and thereby, the courts having jurisdiction over Panchkula in Haryana, have exclusive jurisdiction. The courts in Delhi would not get jurisdiction as the jurisdictional seat of arbitration is Panchkula and not Delhi.
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jurisdiction of courts by placing the supervisory jurisdiction over all arbitration proceedings in connection with the arbitration proceedings with one court exclusively. The aforesaid observation supports our reasoning that once the jurisdictional seat of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, the seat cannot be changed. Therefore, the appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional seat already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held.30. We would now reproduce paragraph 59 of the judgment in BGS SGS Soma (supra), which examines Section 42 of the Act and reads as under:59. Equally incorrect is the finding in Antrix Corpn. Ltd. that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one court exclusively. This is why the section begins with a non obstante clause, and then goes on to state … where with respect to an arbitration agreement any application under this part has been made in a court… It is obvious that the application made under this part to a court must be a court which has jurisdiction to decide such application. The subsequent holdings of this court, that where a seat is designated in an agreement, the courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the court where the seat is located, and that court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a court in which a part of the cause of action arises would then be the exclusive court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled.31. We have already referred to the first few sentences of the aforementioned paragraph and explained the reasoning in the context of the present case. The paragraph BGS SGS Soma (supra) also explains the non-obstante effect as incorporated in Section 42 to hold that it is evident that the application made under Part-I must be to a court which has a jurisdiction to decide such application. Where the seat is designated in the agreement, the courts of the seat alone will have the jurisdiction. Thus, all applications under Part-I will be made in the court where the seat is located as that court would alone have jurisdiction over the arbitration proceedings and all subsequent proceedings arising out of the arbitration proceedings. The quotation also clarifies that when either no seat is designated by an agreement, or the so- called seat is only a convenient venue, then there may be several courts where a part of the cause of action arises that may have jurisdiction. An application under Section 9 of the Act may be preferred before the court in which a part of cause of action arises in the case where parties had not agreed on the seat of arbitration. This is possible in the absence of an agreement fixing the seat, as an application under Section 9 may be filed before the seat is determined by the arbitral tribunal under Section 20(2) of the Act. Consequently, in such situations, the court where the earliest application has been made, being the court in which a part or entire of the cause of action arises, would then be the exclusive court under Section 42 of the Act. Accordingly, such a court would have control over the arbitration proceedings (We are not examining and are not required to decide the question- whether there is a difference between the expression court and the Chief Justice or his nominee in the present case).32. Section 42 is to no avail as it does not help the case propounded by the appellant, as in the present case the arbitrator had fixed the jurisdictional seat under Section 20(2) of the Act before any party had moved the court under the Act, being a court where a part or whole of the cause of action had arisen. The appellant had moved the Delhi High Court under Section 34 of the Act after the arbitral tribunal vide the order dated 5th August 2014 had fixed the jurisdictional seat at Panchkula in Haryana. Consequently, the appellant cannot, based on fastest finger first principle, claim that the courts in Delhi get exclusive jurisdiction in view of Section 42 of the Act. The reason is simple that before the application under Section 34 was filed, the jurisdictional seat of arbitration had been determined and fixed under sub-section (2) to Section 20 and thereby, the courts having jurisdiction over Panchkula in Haryana, have exclusive jurisdiction. The courts in Delhi would not get jurisdiction as the jurisdictional seat of arbitration is Panchkula and not Delhi.
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Mahanth Ram Das Vs. Ganga Das | proper remedy was review. The appellant then filed another petition under S. 151, read with O. 47, R. 1 of the Code of Civil Procedure, setting out the reasons why he was unable to find the money. He stated that he was seriously ill, and though he had attempted to raise a loan, he was unable to get sufficient money, as the grain market had slumped suddenly, and people were unable to advance money. He offered to pay the deficit court-fee within such further time as the High Court might fix. *See 1954 B LJR 600. 3. This application for review was heard on September 27, 1955,*by Ramaswami and Sinha, JJ. They first considered it from the viewpoint of Order 47, Rule 1 of the Code of Civil Procedure, and held that the application did not fall within the Order. The argument of counsel that time could have been extended under S. 148 or S. 149 of the Code of Civil Procedure was also not accepted. The learned Judges held that these sections applied only to cases which were not finally disposed of, and that time under them could be extended only before the final order was actually made. The request to extend the time under the inherent powers of the Court was also rejected for the same reason. Ramaswami, J., concluded his order by saying: *See AIR 1956 Pat 20 . I have considerable sympathy towards the plaintiff petitioner who has placed himself in an unfortunate position, but we must be careful not to allow our sympathy to affect our judgment. To quote the language of Farwell, J. in another context sentiment is a dangerous will-o-the-wisp to take as a guide in the search for legal principles (Latham v. R. Johnson and Nephew Ltd. 1913-1KE 398). In the result, the petition was dismissed, but without costs. 4. The appellant then moved the High Court for a certificate and the case was heard by K. K. Banerji and R. K. Chaudhary, JJ. Though the decree was one of affirmance, the learned Judges fortunately found it possible to grant a certificate, and the present appeal has been filed. 5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court-fee had actually rune out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and S. 149 is equally liberal. As fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954.How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order has been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari, ILR 4 Pat 61 : (AIR 1924 PC 198 ). No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under S. 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions. Ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come. 6. In our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petition were made for the exercise of the inherent powers. | 0[ds]If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and S. 149 is equally liberal. As fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954.How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under S. 151 of theCode of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions. Ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come6. In our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petition were made for the exercise of the inherent powers. | 0 | 1,767 | 421 | ### Instruction:
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proper remedy was review. The appellant then filed another petition under S. 151, read with O. 47, R. 1 of the Code of Civil Procedure, setting out the reasons why he was unable to find the money. He stated that he was seriously ill, and though he had attempted to raise a loan, he was unable to get sufficient money, as the grain market had slumped suddenly, and people were unable to advance money. He offered to pay the deficit court-fee within such further time as the High Court might fix. *See 1954 B LJR 600. 3. This application for review was heard on September 27, 1955,*by Ramaswami and Sinha, JJ. They first considered it from the viewpoint of Order 47, Rule 1 of the Code of Civil Procedure, and held that the application did not fall within the Order. The argument of counsel that time could have been extended under S. 148 or S. 149 of the Code of Civil Procedure was also not accepted. The learned Judges held that these sections applied only to cases which were not finally disposed of, and that time under them could be extended only before the final order was actually made. The request to extend the time under the inherent powers of the Court was also rejected for the same reason. Ramaswami, J., concluded his order by saying: *See AIR 1956 Pat 20 . I have considerable sympathy towards the plaintiff petitioner who has placed himself in an unfortunate position, but we must be careful not to allow our sympathy to affect our judgment. To quote the language of Farwell, J. in another context sentiment is a dangerous will-o-the-wisp to take as a guide in the search for legal principles (Latham v. R. Johnson and Nephew Ltd. 1913-1KE 398). In the result, the petition was dismissed, but without costs. 4. The appellant then moved the High Court for a certificate and the case was heard by K. K. Banerji and R. K. Chaudhary, JJ. Though the decree was one of affirmance, the learned Judges fortunately found it possible to grant a certificate, and the present appeal has been filed. 5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court-fee had actually rune out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and S. 149 is equally liberal. As fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954.How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order has been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari, ILR 4 Pat 61 : (AIR 1924 PC 198 ). No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under S. 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions. Ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come. 6. In our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petition were made for the exercise of the inherent powers.
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If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and S. 149 is equally liberal. As fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954.How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under S. 151 of theCode of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions. Ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come6. In our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petition were made for the exercise of the inherent powers.
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K. V. Narayanan Vs. K. V. Ranganandhan & Ors | Pathy was in the nature of remuneration for the services to be rendered by him. It will be useful in this connection to refer to the decision of this Court in Raj Kumar Singh Kukam Chandji v. Commissioner of Income-tax, Madhya Pradesh where on the question whether the managing directors remuneration received by the assessee was assessable in his individual hands or in the hands of the assessees Hindu undivided family, this Court expressed the view that the remuneration was assessable as the assessees individual income and not as the income of his Hindu undivided family. We are, therefore, of the view that Schedule D-1 properties were given absolutely to Kota Venkatachala Pathy as his separate properties.Let us now see as to whether the aforesaid arrangement entered between the members of the Hind u undivided family whereby properties mentioned in Schedule D-1 to the deed of partition were made over to Kota Venkatachala Pathy was valid according to Hindu Law. A reference to page 426 of Maynes Treatise on Hindu Law and Usage (11th Edition) makes it clear that while dividing the family estate, it is necessary for the joint family to take account of both the assets and the debts for which the undivided estate is liable and to make provision for discharge of the debts. It is al so well settled by the decisions of this Court in Sahu Madho Das v. Pandit, Mukand Ram Maturi Pullaian v. Maturi Narasimham and S. Shanmugam Pillai &Ors. v. K. Shanmugam Pillai Ors. that if family arrangements which are governed by a special equity peculiar to themselves or entered into bonafide to maintain peace or bring about harmony in the family and the terms thereof are fair taking into consideration the circumstances of the case, every effort must be made by the Court to recognise and sustain it. Examining the matter in the light of these principles, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the responsibility to discharge the family debts and liability was cast on Kota Venkatachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden. Thus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties of Kota Venkatachala Pathy from the date of the execution of the deed of partition and are not liable to partition.This takes us to the question as to whether there was, as contended by the appellant, any blending of the properties mentioned in Schedule D-1 to the deed of partition with the rest of the properties of the joint family consisting of Kota Venkatachala Pathy and the appellant. It is true that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. (See Lakk ireddi Chinna Venkata Reddi &Ors. v. Lakkireddi Lakshmama and G. Narayana Ram v. G. Chamaraju &Ors..5. In the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition. The mere fact that these properties were not separately entered by Kota Venkatachala Pathy in the account books or that no separate account of the earning from these proper ties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was no blending of the properties by Kota Venkatachala Pathy as contended by the appellant.The mere f act that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable for them.6. There is also no substance in the last contention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking partition is not entitled to call upon the manager to account for his past dealing with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being no evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the direction issued by the High Court which is just and proper.7. | 0[ds]In the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition. The mere fact that these properties were not separately entered by Kota Venkatachala Pathy in the account books or that no separate account of the earning from these proper ties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was no blending of the properties by Kota Venkatachala Pathy as contended by the appellant.The mere f act that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable foris also no substance in the last contention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking partition is not entitled to call upon the manager to account for his past dealing with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being no evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the direction issued by the High Court which is just and proper. | 0 | 3,728 | 329 | ### 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:
Pathy was in the nature of remuneration for the services to be rendered by him. It will be useful in this connection to refer to the decision of this Court in Raj Kumar Singh Kukam Chandji v. Commissioner of Income-tax, Madhya Pradesh where on the question whether the managing directors remuneration received by the assessee was assessable in his individual hands or in the hands of the assessees Hindu undivided family, this Court expressed the view that the remuneration was assessable as the assessees individual income and not as the income of his Hindu undivided family. We are, therefore, of the view that Schedule D-1 properties were given absolutely to Kota Venkatachala Pathy as his separate properties.Let us now see as to whether the aforesaid arrangement entered between the members of the Hind u undivided family whereby properties mentioned in Schedule D-1 to the deed of partition were made over to Kota Venkatachala Pathy was valid according to Hindu Law. A reference to page 426 of Maynes Treatise on Hindu Law and Usage (11th Edition) makes it clear that while dividing the family estate, it is necessary for the joint family to take account of both the assets and the debts for which the undivided estate is liable and to make provision for discharge of the debts. It is al so well settled by the decisions of this Court in Sahu Madho Das v. Pandit, Mukand Ram Maturi Pullaian v. Maturi Narasimham and S. Shanmugam Pillai &Ors. v. K. Shanmugam Pillai Ors. that if family arrangements which are governed by a special equity peculiar to themselves or entered into bonafide to maintain peace or bring about harmony in the family and the terms thereof are fair taking into consideration the circumstances of the case, every effort must be made by the Court to recognise and sustain it. Examining the matter in the light of these principles, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the responsibility to discharge the family debts and liability was cast on Kota Venkatachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden. Thus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties of Kota Venkatachala Pathy from the date of the execution of the deed of partition and are not liable to partition.This takes us to the question as to whether there was, as contended by the appellant, any blending of the properties mentioned in Schedule D-1 to the deed of partition with the rest of the properties of the joint family consisting of Kota Venkatachala Pathy and the appellant. It is true that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. (See Lakk ireddi Chinna Venkata Reddi &Ors. v. Lakkireddi Lakshmama and G. Narayana Ram v. G. Chamaraju &Ors..5. In the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition. The mere fact that these properties were not separately entered by Kota Venkatachala Pathy in the account books or that no separate account of the earning from these proper ties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was no blending of the properties by Kota Venkatachala Pathy as contended by the appellant.The mere f act that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable for them.6. There is also no substance in the last contention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking partition is not entitled to call upon the manager to account for his past dealing with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being no evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the direction issued by the High Court which is just and proper.7.
### Response:
0
### Explanation:
In the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition. The mere fact that these properties were not separately entered by Kota Venkatachala Pathy in the account books or that no separate account of the earning from these proper ties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was no blending of the properties by Kota Venkatachala Pathy as contended by the appellant.The mere f act that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable foris also no substance in the last contention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking partition is not entitled to call upon the manager to account for his past dealing with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being no evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the direction issued by the High Court which is just and proper.
|
Management Of Borpukhurie Tea Estate Vs. Presiding Officer, Industrial Tribunal Assam And Anr | Industrial Tribunal refused to treat the Managements original application under section 33 (2) of the Act as one under section 33 (3) (b) of the Act and rejected the same as not maintainable holding t hat the Management had violated the provisions of the Act in dismissing the respondent who was admittedly a protected work-man without obtaining the permission from the Tribunal. Aggrieved by this order, the Management filed an application before the High Court under Article 226 of the Constitution seeking issuance of a writ of certiorari or mandamus or any other appropriate writ quashing the aforesaid order dated July 10, 1967 of the Industrial Tribunal but the same was dismissed with the observation that the punishment of dismissal having already been inflicted without complying with the provisions of section 33(3)(b) of the Act, an Ex Post Facto permission could not be granted. It is against this order that the Management has come up in appeal to this Court.Appearing in support of the appeal, Mr. Nariman has urged that though it may be open to an Industrial Tribunal to withhold the permission contemplated by section 33 (3) (b) of the Act if it finds that an employer has not been able to make out a prima facie case justifying dismissal of a workman or if it finds that there is material to establish that the employer was guilty of unfair labour practice or victimisation, there was no justification in the instant case for the Industrial Tribunal to hold that the appellant had violated the provisions of section 3 3 (3) (b) of the Act or to refuse to accede to the prayer of the appellant to treat its original application dated November 10, 1966 as one under section 33 (3) (b) of the Act ignoring the Teal substance thereof. 4. We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court in Western India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.) are opposite in this connection:-"Again, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention." 5. It is equally important for the Court to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. Keeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-"1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ? 2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ? 3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ? 4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ? 5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ?" 6. | 1[ds]We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court inWestern India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.)are opposite in this, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention."We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their casesKeeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ?2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ?3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ?4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ?5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ? | 1 | 2,324 | 1,077 | ### 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:
Industrial Tribunal refused to treat the Managements original application under section 33 (2) of the Act as one under section 33 (3) (b) of the Act and rejected the same as not maintainable holding t hat the Management had violated the provisions of the Act in dismissing the respondent who was admittedly a protected work-man without obtaining the permission from the Tribunal. Aggrieved by this order, the Management filed an application before the High Court under Article 226 of the Constitution seeking issuance of a writ of certiorari or mandamus or any other appropriate writ quashing the aforesaid order dated July 10, 1967 of the Industrial Tribunal but the same was dismissed with the observation that the punishment of dismissal having already been inflicted without complying with the provisions of section 33(3)(b) of the Act, an Ex Post Facto permission could not be granted. It is against this order that the Management has come up in appeal to this Court.Appearing in support of the appeal, Mr. Nariman has urged that though it may be open to an Industrial Tribunal to withhold the permission contemplated by section 33 (3) (b) of the Act if it finds that an employer has not been able to make out a prima facie case justifying dismissal of a workman or if it finds that there is material to establish that the employer was guilty of unfair labour practice or victimisation, there was no justification in the instant case for the Industrial Tribunal to hold that the appellant had violated the provisions of section 3 3 (3) (b) of the Act or to refuse to accede to the prayer of the appellant to treat its original application dated November 10, 1966 as one under section 33 (3) (b) of the Act ignoring the Teal substance thereof. 4. We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court in Western India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.) are opposite in this connection:-"Again, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention." 5. It is equally important for the Court to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. Keeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-"1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ? 2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ? 3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ? 4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ? 5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ?" 6.
### Response:
1
### Explanation:
We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court inWestern India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.)are opposite in this, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention."We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their casesKeeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ?2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ?3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ?4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ?5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ?
|
MOHAMMED SIDDIQUE Vs. NATIONAL INSURANCE COMPANY LTD | loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed. 22. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case. 23. But Sarla Verma, though of a two member Bench, took note of Susamma as well as Trilok Chandra and thereafter held in paragraphs 41 and 42 as follows: 41. Tribunals/ courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in column (5) of the table above]; and some follow the multiplier actually adopted in the Second schedule while calculating the quantum of compensation [set out in column (6) of the table above]. For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second schedule to the MV Act. some Tribunals as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of the MV Act. in cases falling under section 166 of the MV Act Davies methods is applicable. 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every 5 years, that is M-17 for 26 to 30 years, M-16 to 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by 2 units for every 5 years, i.e., M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years, M-5 for 66 to 70 years. 24. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie (2005) 10 SCC 720 with the multiplier mentioned in the Second Schedule. 25. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed. 26. In Munna Lal Jain, which is also by a bench of three Honble judges, the Court observed in para 11 as follows: Whether the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken. 27. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand. 28. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature. 29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18. | 1[ds]12. It is seen from the material on record that the accident occurred at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility of heavy traffic on the road. The finding of fact by the Tribunal, as confirmed by the High Court, was that the motor cycle in which the deceased was travelling, was hit by the car from behind and that therefore it was clear that the accident was caused by the rash and negligent driving of the car. In fact, the High Court confirms in paragraph 4 of the impugned order that the motor cycle was hit by the car from behind. But it nevertheless holds that 3 persons on a motor cycle could have added to the imbalance. The relevant portion of paragraph 4 of the order of the High Court reads as follows:On careful assessment of the evidence led, this Court finds substance in the plea of the insurance company. While it is correct that the offending car had no business to strike from behind against the motor-cycle moving ahead of it, even if the motor cycle was changing lane to allow another vehicle to overtake, the fact that a motor vehicle meant for only two persons to ride was carrying, besides the driver, two persons on the pillion would undoubtedly have added to the imbalance13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two- wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the imbalance14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set asideAccording to the claimants, the deceased was aged 23 years at the time of the accident and he was not even a matriculate. But he was stated to have been employed in a proprietary concern named M/s Chandra Apparels on a monthly salary of Rs.9600/-. The sole proprietor of the concern was examined as PW-2 and the salary certificate was marked as Ex.PW-1/8. The Tribunal which had the benefit of recording the evidence and which consequently had the benefit of observing the demeanour of the witness, specifically recorded a finding that there was no reason to discard the testimony of PW-216. But unfortunately the High Court thought that the employer should have produced salary vouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross-examination, calling upon PW-2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available. This cannot be a ground for the High Court to hold that the testimony of PW-2 is unacceptable18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW-2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW-2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment. Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled forthe Tribunal applied the multiplier of 18, on the basis of the age of the deceased at the time of the accidentBut the High Court applied a multiplier of 14 on the ground that the choice of the multiplier should depend either upon the age of the victim or upon the age of the claimants, whichever is higher. According to the High court, this was the ratio laid down in General Manager, Kerala SRTC Vs Susamma Thomas (1994) 2 SCC 176 , and that the same was also approved by a three Member Bench of this Court in UPSRTC Vs. Trilok Chandra (supra)20. The High Court also noted that the choice of the multiplier with reference to the age of the deceased alone, approved in Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 , was found acceptance in two subsequent decisions namely (1) Reshmi Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 and (2) Munna Lal Jain Vs. Vipin Kumar Sharma JT 2015 (5) SC 1 . But the High court thought that the decisions in Susamma Thomas and Trilok Chandra were directly on the point in relation to the choice of the multiplier and that the issue as envisaged in those 2 decisions was neither raised nor considered nor adjudicated upon in Sarla Verma. According to the High court, the impact of the age of the claimants, in cases where it is found to be higher than that of the deceased, did not come up for consideration in Reshma Kumari and Munnal Lal Jain. Therefore, the High court thought that it was obliged to follow the ratio laid down in Trilok Chandra21. But unfortunately the High Court failed to note that the decision in Susamma Thomas was delivered on 06-01-1993, before the insertion of the Second Schedule under Act 54 of 1994. Moreover what the Court was concerned in Susamma Thomas was whether the multiplier method involving the ascertainment of the loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed22. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case23. But Sarla Verma, though of a two member Bench, took note of Susamma as well as Trilok Chandra and thereafter held in paragraphs 41 and 42 as follows:41. Tribunals/ courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in column (5) of the table above]; and some follow the multiplier actually adopted in the Second schedule while calculating the quantum of compensation [set out in column (6) of the table above]. For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second schedule to the MV Act. some Tribunals as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of the MV Act. in cases falling under section 166 of the MV Act Davies methods is applicable42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every 5 years, that is M-17 for 26 to 30 years, M-16 to 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by 2 units for every 5 years, i.e., M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years, M-5 for 66 to 70 years24. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie (2005) 10 SCC 720 with the multiplier mentioned in the Second Schedule25. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed26. In Munna Lal Jain, which is also by a bench of three Honble judges, the Court observed in para 11 as follows:er the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken27. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand28. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18. | 1 | 3,730 | 2,718 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed. 22. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case. 23. But Sarla Verma, though of a two member Bench, took note of Susamma as well as Trilok Chandra and thereafter held in paragraphs 41 and 42 as follows: 41. Tribunals/ courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in column (5) of the table above]; and some follow the multiplier actually adopted in the Second schedule while calculating the quantum of compensation [set out in column (6) of the table above]. For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second schedule to the MV Act. some Tribunals as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of the MV Act. in cases falling under section 166 of the MV Act Davies methods is applicable. 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every 5 years, that is M-17 for 26 to 30 years, M-16 to 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by 2 units for every 5 years, i.e., M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years, M-5 for 66 to 70 years. 24. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie (2005) 10 SCC 720 with the multiplier mentioned in the Second Schedule. 25. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed. 26. In Munna Lal Jain, which is also by a bench of three Honble judges, the Court observed in para 11 as follows: Whether the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken. 27. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand. 28. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature. 29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18.
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was whether the multiplier method involving the ascertainment of the loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed22. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case23. But Sarla Verma, though of a two member Bench, took note of Susamma as well as Trilok Chandra and thereafter held in paragraphs 41 and 42 as follows:41. Tribunals/ courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in column (5) of the table above]; and some follow the multiplier actually adopted in the Second schedule while calculating the quantum of compensation [set out in column (6) of the table above]. For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second schedule to the MV Act. some Tribunals as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of the MV Act. in cases falling under section 166 of the MV Act Davies methods is applicable42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every 5 years, that is M-17 for 26 to 30 years, M-16 to 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by 2 units for every 5 years, i.e., M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years, M-5 for 66 to 70 years24. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra and Charlie (2005) 10 SCC 720 with the multiplier mentioned in the Second Schedule25. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed26. In Munna Lal Jain, which is also by a bench of three Honble judges, the Court observed in para 11 as follows:er the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken27. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one hand and the subsequent decisions on the other hand28. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature29. Thus, we find that the High Court committed a serious error (i) in holding the victim guilty of contributory negligence (ii) in rejecting the evidence of PW-2 with regard to the employment and monthly income of the deceased and (ii) in applying the multiplier of 14 instead of 18.
|
Union Of India & Ors Vs. M/S Exen Industries | for raw materials will, ordinarily, be issued subject to the availability of foreign exchange on the basis of certified requirements for twelve months consumption; but the certified requirements will be scrutinised by the licensing authority and an appropriate reduction will, where necessary, be made after taking into account :-(i) the stock held on the date of application and the expected arrivals against licences in hand;(ii) the quantum of import likely to be available through the commercial channels;(iii) the quantum of similar goods or substitutes likely to be available from indigenous sources; and(iv)the past imports of the item in question by the applicant;(v)the actual production during the past licensing period and the estimated production for the period in question;(vi) any fall in production on account of circumstances such as breakdown of machinery, labour relations, want of funds etc."The petitioner contended that on the basis of this paragraph he was entitled to a license on the basis of certified requirements for twelve months consumption. But the very same paragraph shows that the certified requirements will have to be scrutinised after taking into account the past imports of the item in question by the applicant and the actual production during the past licensing period and the estimated production for the period in question. Now in this case there were no post imports of the item in question by the appellant but only by the former Exen Industries and the actual production during the past licensing period can also be only the production of the former Exen Industries. The petitioners entitlement cannot be considered divorced from its past history and the fact that it was only one of the partners of a dissolved partnership.The fact that after the dissolution of the partnership the new Exen company was able to produce as much as or even more than the former Exen company taking advantage of the in-built installed capacity cannot entitle it to get the whole of the quantity issued to the former Exen company. That would mean depriving the other partner who was entitled to an equal quantity. We are of opinion that the petitioner cannot be allowed to put forward such a contention without making Mehta a party to these proceedings and no decision against the interest of Mehta could be made in his absence.5. Another reason why we consider that the petitioner cannot get anything more than what he was given would be apparent from a reading of paragraph 88 (2) (c) and understanding the principle underlying it. That paragraph reads as follows:"88 (2) (c) Division of business:(i) Where an import licence has been granted to an actual user, and before the importation of the goods against the said licence, there is a division of the factory amongst the partners of the business, and the name of the business/ factory as appearing in the licence is retained by one of the succeeding parties or none of them is allowed to use such name, the succeeding parties, not being the licence-holders, cannot operate upon the said licence. In such cases also, joint application by all the succeeding parties should be made to the licensing authority concerned for re-issue of separate licences in their favour, in lieu of the original licence, in proportion to the portion of the factory taken over by each succeeding party, supported by documentary evidence showing the division of the business/factory and particulars of the established importer quotas, if any, possessed by the succeeding parties. The licensing authority will consider the application in the same manner as in the cases referred to in sub-para (b) (i) above and licences, if admissible, will be issued to the succeeding parties for the proportionate values as indicated above. The original licence surrendered by the parties will be retained by the licensing authority and cancelled.(ii) If the division of the factory as referred to in sub-para (i) above, takes place after the importation of the goods against the said licence, the imported goods become part of the assets of the factory and they should be divided by the succeeding parties amongst themselves proportionate to the portion of the factory taken over by them, under intimation to the licensing authority concerned so that the licensing authority may be in a position to ensure proper utilisation of the imported goods by each of the succeeding units in the factory taken over by them from the original concern."If there is a division of the factory amongst the partners of a business joint application by all the succeeding parties has to be made for re-issue of separate licences in their favour in proportion to the portion of the factory taken over by each succeeding party. So also even if division takes place after importation. If that is so in respect of the importation of goods against current licences, same principle should apply for future licences also. The principle that when a partnership is dissolved the import licences would have to be equally divided among the partners has been implicitly recognised by this Court in its decision in Controller v. Aminchand, (1966) 1 SCR 262 = (AIR 1966 SC 478 ). This paragraph embodies that equitable principle.6. There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made. | 1[ds]The petitioner contended that on the basis of this paragraph he was entitled to a license on the basis of certified requirements for twelve months consumption. But the very same paragraph shows that the certified requirements will have to be scrutinised after taking into account the past imports of the item in question by the applicant and the actual production during the past licensing period and the estimated production for the period in question. Now in this case there were no post imports of the item in question by the appellant but only by the former Exen Industries and the actual production during the past licensing period can also be only the production of the former Exen Industries. The petitioners entitlement cannot be considered divorced from its past history and the fact that it was only one of the partners of a dissolved partnership.The fact that after the dissolution of the partnership the new Exen company was able to produce as much as or even more than the former Exen company taking advantage of the in-built installed capacity cannot entitle it to get the whole of the quantity issued to the former Exen company. That would mean depriving the other partner who was entitled to an equal quantity. We are of opinion that the petitioner cannot be allowed to put forward such a contention without making Mehta a party to these proceedings and no decision against the interest of Mehta could be made in histhere is a division of the factory amongst the partners of a business joint application by all the succeeding parties has to be made for re-issue of separate licences in their favour in proportion to the portion of the factory taken over by each succeeding party. So also even if division takes place after importation. If that is so in respect of the importation of goods against current licences, same principle should apply for future licences also. The principle that when a partnership is dissolved the import licences would have to be equally divided among the partners has been implicitly recognised by this Court in its decision in Controller v. Aminchand, (1966) 1 SCR 262 = (AIR 1966 SC 478 ). This paragraph embodies that equitable principle.6. There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made.There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made.The error which the High Court fell into, as we already pointed out was in thinking that the new Exen Industries is the same as the old Exen Industries. That can be only basis for holding that Exen Industries (New) should get its import entitlement on the basis of its production. | 1 | 2,150 | 747 | ### 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:
for raw materials will, ordinarily, be issued subject to the availability of foreign exchange on the basis of certified requirements for twelve months consumption; but the certified requirements will be scrutinised by the licensing authority and an appropriate reduction will, where necessary, be made after taking into account :-(i) the stock held on the date of application and the expected arrivals against licences in hand;(ii) the quantum of import likely to be available through the commercial channels;(iii) the quantum of similar goods or substitutes likely to be available from indigenous sources; and(iv)the past imports of the item in question by the applicant;(v)the actual production during the past licensing period and the estimated production for the period in question;(vi) any fall in production on account of circumstances such as breakdown of machinery, labour relations, want of funds etc."The petitioner contended that on the basis of this paragraph he was entitled to a license on the basis of certified requirements for twelve months consumption. But the very same paragraph shows that the certified requirements will have to be scrutinised after taking into account the past imports of the item in question by the applicant and the actual production during the past licensing period and the estimated production for the period in question. Now in this case there were no post imports of the item in question by the appellant but only by the former Exen Industries and the actual production during the past licensing period can also be only the production of the former Exen Industries. The petitioners entitlement cannot be considered divorced from its past history and the fact that it was only one of the partners of a dissolved partnership.The fact that after the dissolution of the partnership the new Exen company was able to produce as much as or even more than the former Exen company taking advantage of the in-built installed capacity cannot entitle it to get the whole of the quantity issued to the former Exen company. That would mean depriving the other partner who was entitled to an equal quantity. We are of opinion that the petitioner cannot be allowed to put forward such a contention without making Mehta a party to these proceedings and no decision against the interest of Mehta could be made in his absence.5. Another reason why we consider that the petitioner cannot get anything more than what he was given would be apparent from a reading of paragraph 88 (2) (c) and understanding the principle underlying it. That paragraph reads as follows:"88 (2) (c) Division of business:(i) Where an import licence has been granted to an actual user, and before the importation of the goods against the said licence, there is a division of the factory amongst the partners of the business, and the name of the business/ factory as appearing in the licence is retained by one of the succeeding parties or none of them is allowed to use such name, the succeeding parties, not being the licence-holders, cannot operate upon the said licence. In such cases also, joint application by all the succeeding parties should be made to the licensing authority concerned for re-issue of separate licences in their favour, in lieu of the original licence, in proportion to the portion of the factory taken over by each succeeding party, supported by documentary evidence showing the division of the business/factory and particulars of the established importer quotas, if any, possessed by the succeeding parties. The licensing authority will consider the application in the same manner as in the cases referred to in sub-para (b) (i) above and licences, if admissible, will be issued to the succeeding parties for the proportionate values as indicated above. The original licence surrendered by the parties will be retained by the licensing authority and cancelled.(ii) If the division of the factory as referred to in sub-para (i) above, takes place after the importation of the goods against the said licence, the imported goods become part of the assets of the factory and they should be divided by the succeeding parties amongst themselves proportionate to the portion of the factory taken over by them, under intimation to the licensing authority concerned so that the licensing authority may be in a position to ensure proper utilisation of the imported goods by each of the succeeding units in the factory taken over by them from the original concern."If there is a division of the factory amongst the partners of a business joint application by all the succeeding parties has to be made for re-issue of separate licences in their favour in proportion to the portion of the factory taken over by each succeeding party. So also even if division takes place after importation. If that is so in respect of the importation of goods against current licences, same principle should apply for future licences also. The principle that when a partnership is dissolved the import licences would have to be equally divided among the partners has been implicitly recognised by this Court in its decision in Controller v. Aminchand, (1966) 1 SCR 262 = (AIR 1966 SC 478 ). This paragraph embodies that equitable principle.6. There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made.
### Response:
1
### Explanation:
The petitioner contended that on the basis of this paragraph he was entitled to a license on the basis of certified requirements for twelve months consumption. But the very same paragraph shows that the certified requirements will have to be scrutinised after taking into account the past imports of the item in question by the applicant and the actual production during the past licensing period and the estimated production for the period in question. Now in this case there were no post imports of the item in question by the appellant but only by the former Exen Industries and the actual production during the past licensing period can also be only the production of the former Exen Industries. The petitioners entitlement cannot be considered divorced from its past history and the fact that it was only one of the partners of a dissolved partnership.The fact that after the dissolution of the partnership the new Exen company was able to produce as much as or even more than the former Exen company taking advantage of the in-built installed capacity cannot entitle it to get the whole of the quantity issued to the former Exen company. That would mean depriving the other partner who was entitled to an equal quantity. We are of opinion that the petitioner cannot be allowed to put forward such a contention without making Mehta a party to these proceedings and no decision against the interest of Mehta could be made in histhere is a division of the factory amongst the partners of a business joint application by all the succeeding parties has to be made for re-issue of separate licences in their favour in proportion to the portion of the factory taken over by each succeeding party. So also even if division takes place after importation. If that is so in respect of the importation of goods against current licences, same principle should apply for future licences also. The principle that when a partnership is dissolved the import licences would have to be equally divided among the partners has been implicitly recognised by this Court in its decision in Controller v. Aminchand, (1966) 1 SCR 262 = (AIR 1966 SC 478 ). This paragraph embodies that equitable principle.6. There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made.There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will normally be issued on the basis of the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted to the new Exen Industries is on the basis of the Directorates recommendation.7. We are, therefore, satisfied that the petitioner was not entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained fully by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction could be made.The error which the High Court fell into, as we already pointed out was in thinking that the new Exen Industries is the same as the old Exen Industries. That can be only basis for holding that Exen Industries (New) should get its import entitlement on the basis of its production.
|
M/S. Ntpc Ltd Vs. M.P. State Electiricity Board | not have been brought in to award interest to the Electricity Boards.27. It is true that there was delay in the process of determination of the tariff. We are informed that the Commission became functional only on 15.5.1999. NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely Rajasthan Rajya Vidyut Vitaran Nigam Limited had obtained stay of proceedings before the Commission from the High Court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by the NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on to the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount.28. Submissions were advanced before us on the question as to whether the tariff determination under Section 62 was in any way legislative or quasi-judicial. The counsel for NTPC drew our attention to a number of judgments concerning price fixation.a. In West Bengal Electricity Regulatory Commission V. CESC (2002 (8) SCC 715 ), the court noted, in the context of electricity tariff determination under the Electricity Regulatory Commissions Act, 1998, that price fixation is in the nature of a legislative function, and hence, generally, no hearing is required. However, as the statute provides for a hearing opportunity, the same must be provided.b. Similar view was taken in this context in the following cases:(i) Levy sugar pricing under the Essential Commodities Act, 1955 has been held to be a legislative function in Shri Sitaram Sugar Mills Vs. UOI (1990 3 SCC 223 ), Saraswati Industrial Syndicate V. UOI (1974 (2) SCC 630 ), Malaprabha Sugars V. UOI (1994 1 SCC 648 ) and Mahalakshmi Sugar Mills V. UOI (2009 (16) SCC 569 ).c. Coal price fixation has been held to be a legislative function under the Essential Commodities Act, 1955 in Pallavi Refractories V. Singareni Collieries (2005 (2) SCC 227 ).d. Fixation of the price of Natural Gas under the Essential Commodities Act, 1955, is held to be legislative function in ONGC V. Assn. of Natural Gas Consuming Industries of Gujarat (1990 Supp. (1) SCC 397) .e. In Prag Ice and Oil Mills V. UOI (1978 (3) SCC 459 ), the court in the context of price fixation of oil under Essential Commodities Act, 1955, observed as under- "We think that unless by the terms of particular statute or order, price fixation is made a quasi judicial function for specified purposes or cases, it is really legislative in character. The legislative measure does not concern itself to the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind of class." 29. The counsel for the Electricity Boards, however, drew our attention to a recent judgment of a Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission reported in (2010 (4) SCC 603 ), wherein this Court has observed in para 50 as follows:- "50. Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes "tariff" as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff......." 30. In the facts of the present case, however, this controversy as to whether tariff fixation is legislative or quasi-judicial need not detain us any further. As held by the Constitution Bench, price fixation is really legislative in character, but since an appeal is provided under Section 111 of the Act, it takes a quasi-judicial colour. That by itself cannot justify the claim for interest during the period when the proceedings were pending for the tariff fixation. The tariff that was being charged at the relevant time was as per the previous notifications. Once the tariff was finalized subsequently, NTPC has adjusted the excess amount which it has received. It cannot be said that during this period the NTPC was claiming the charges in an unjust way, to make a case in equity. Our attention has been drawn to the industry practice which also shows that on all such occasions interest has never been either demanded or paid when the price fixation takes place. As held by us hereinabove, claim for interest could not be covered under Section 62 (6). The provision for interest has been introduced by regulations subsequent to the period which was under consideration before the Commission. If we apply the propositions in Rallia Ram (supra) and Watkins Mayor (supra), we find that the terms of the supply agreement, the governing regulation and notifications did not contain any provision for interest. The industry practice did not provide for it as well. In view thereof, interest could not be claimed either on the basis of equity or on the basis of restitution.31. In the circumstances, it is not possible to accept the submission that the Appellate Tribunal erred in any way in declining to award interest under Section 62 (6) of the Act. There was however, an error on its part in granting the same under the concept of equity, justice and fair-play. | 1[ds]26. It is true that the power to make restitution is inherent in every Court as observed by this Court in Kavita Trehan and Anr. Vs. Balsara Hygiene Products Ltd. reported in (1994 (5) SCC 380 ) which was relied upon by the council for the Electricity Boards. Thus, restitution will apply even where the case does not strictly fall under Section 144 of CPC . However, we must note that Kavita Trehan was a case where the submission was made to the effect that termination of the contract was wrong and an injunction was sought in a civil suit to restrain the respondent from interfering with the disposal of goods. It was in this context that the principle of restitution was applied. It is therefore, difficult to appreciate as to how the Appellate Tribunal could bring in either the principles of justice, equity and fair-play or that of restitution in the present case. What is important to note is that in paragraph 16 of its order the Appellate Tribunal has specifically observed in terms that this was not a case where the beneficiaries were made to pay the excess tariff at the instance of NTPC through force, coercion or threat. This being the position the principles of equity, justice and fair-play could not have been brought in to award interest to the Electricity Boards.27. It is true that there was delay in the process of determination of the tariff. We are informed that the Commission became functional only on 15.5.1999. NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely Rajasthan Rajya Vidyut Vitaran Nigam Limited had obtained stay of proceedings before the Commission from the High Court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by the NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on to the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount.28. Submissions were advanced before us on the question as to whether the tariff determination under Section 62 was in any way legislative or quasi-judicial. The counsel for NTPC drew our attention to a number of judgments concerning price fixation.a. In West Bengal Electricity Regulatory Commission V. CESC (2002 (8) SCC 715 ), the court noted, in the context of electricity tariff determination under the Electricity Regulatory Commissions Act, 1998, that price fixation is in the nature of a legislative function, and hence, generally, no hearing is required. However, as the statute provides for a hearing opportunity, the same must be provided.b. Similar view was taken in this context in the following cases:(i) Levy sugar pricing under the Essential Commodities Act, 1955 has been held to be a legislative function in Shri Sitaram Sugar Mills Vs. UOI (1990 3 SCC 223 ), Saraswati Industrial Syndicate V. UOI (1974 (2) SCC 630 ), Malaprabha Sugars V. UOI (1994 1 SCC 648 ) and Mahalakshmi Sugar Mills V. UOI (2009 (16) SCC 569 ).c. Coal price fixation has been held to be a legislative function under the Essential Commodities Act, 1955 in Pallavi Refractories V. Singareni Collieries (2005 (2) SCC 227 ).d. Fixation of the price of Natural Gas under the Essential Commodities Act, 1955, is held to be legislative function in ONGC V. Assn. of Natural Gas Consuming Industries of Gujarat (1990 Supp. (1) SCC 397) .e. In Prag Ice and Oil Mills V. UOI (1978 (3) SCC 459 ), the court in the context of price fixation of oil under Essential Commodities Act, 1955, observed asthink that unless by the terms of particular statute or order, price fixation is made a quasi judicial function for specified purposes or cases, it is really legislative in character. The legislative measure does not concern itself to the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind of class.The counsel for the Electricity Boards, however, drew our attention to a recent judgment of a Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission reported in (2010 (4) SCC 603 ), wherein this Court has observed in para 50 asApplying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes "tariff" as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff.......In the facts of the present case, however, this controversy as to whether tariff fixation is legislative or quasi-judicial need not detain us any further. As held by the Constitution Bench, price fixation is really legislative in character, but since an appeal is provided under Section 111 of the Act, it takes a quasi-judicial colour. That by itself cannot justify the claim for interest during the period when the proceedings were pending for the tariff fixation. The tariff that was being charged at the relevant time was as per the previous notifications. Once the tariff was finalized subsequently, NTPC has adjusted the excess amount which it has received. It cannot be said that during this period the NTPC was claiming the charges in an unjust way, to make a case in equity. Our attention has been drawn to the industry practice which also shows that on all such occasions interest has never been either demanded or paid when the price fixation takes place. As held by us hereinabove, claim for interest could not be covered under Section 62 (6). The provision for interest has been introduced by regulations subsequent to the period which was under consideration before the Commission. If we apply the propositions in Rallia Ram (supra) and Watkins Mayor (supra), we find that the terms of the supply agreement, the governing regulation and notifications did not contain any provision for interest. The industry practice did not provide for it as well. In view thereof, interest could not be claimed either on the basis of equity or on the basis of restitution.31. In the circumstances, it is not possible to accept the submission that the Appellate Tribunal erred in any way in declining to award interest under Section 62 (6) of the Act. There was however, an error on its part in granting the same under the concept of equity, justice and fair-play. | 1 | 6,484 | 1,352 | ### 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:
not have been brought in to award interest to the Electricity Boards.27. It is true that there was delay in the process of determination of the tariff. We are informed that the Commission became functional only on 15.5.1999. NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely Rajasthan Rajya Vidyut Vitaran Nigam Limited had obtained stay of proceedings before the Commission from the High Court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by the NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on to the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount.28. Submissions were advanced before us on the question as to whether the tariff determination under Section 62 was in any way legislative or quasi-judicial. The counsel for NTPC drew our attention to a number of judgments concerning price fixation.a. In West Bengal Electricity Regulatory Commission V. CESC (2002 (8) SCC 715 ), the court noted, in the context of electricity tariff determination under the Electricity Regulatory Commissions Act, 1998, that price fixation is in the nature of a legislative function, and hence, generally, no hearing is required. However, as the statute provides for a hearing opportunity, the same must be provided.b. Similar view was taken in this context in the following cases:(i) Levy sugar pricing under the Essential Commodities Act, 1955 has been held to be a legislative function in Shri Sitaram Sugar Mills Vs. UOI (1990 3 SCC 223 ), Saraswati Industrial Syndicate V. UOI (1974 (2) SCC 630 ), Malaprabha Sugars V. UOI (1994 1 SCC 648 ) and Mahalakshmi Sugar Mills V. UOI (2009 (16) SCC 569 ).c. Coal price fixation has been held to be a legislative function under the Essential Commodities Act, 1955 in Pallavi Refractories V. Singareni Collieries (2005 (2) SCC 227 ).d. Fixation of the price of Natural Gas under the Essential Commodities Act, 1955, is held to be legislative function in ONGC V. Assn. of Natural Gas Consuming Industries of Gujarat (1990 Supp. (1) SCC 397) .e. In Prag Ice and Oil Mills V. UOI (1978 (3) SCC 459 ), the court in the context of price fixation of oil under Essential Commodities Act, 1955, observed as under- "We think that unless by the terms of particular statute or order, price fixation is made a quasi judicial function for specified purposes or cases, it is really legislative in character. The legislative measure does not concern itself to the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind of class." 29. The counsel for the Electricity Boards, however, drew our attention to a recent judgment of a Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission reported in (2010 (4) SCC 603 ), wherein this Court has observed in para 50 as follows:- "50. Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes "tariff" as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff......." 30. In the facts of the present case, however, this controversy as to whether tariff fixation is legislative or quasi-judicial need not detain us any further. As held by the Constitution Bench, price fixation is really legislative in character, but since an appeal is provided under Section 111 of the Act, it takes a quasi-judicial colour. That by itself cannot justify the claim for interest during the period when the proceedings were pending for the tariff fixation. The tariff that was being charged at the relevant time was as per the previous notifications. Once the tariff was finalized subsequently, NTPC has adjusted the excess amount which it has received. It cannot be said that during this period the NTPC was claiming the charges in an unjust way, to make a case in equity. Our attention has been drawn to the industry practice which also shows that on all such occasions interest has never been either demanded or paid when the price fixation takes place. As held by us hereinabove, claim for interest could not be covered under Section 62 (6). The provision for interest has been introduced by regulations subsequent to the period which was under consideration before the Commission. If we apply the propositions in Rallia Ram (supra) and Watkins Mayor (supra), we find that the terms of the supply agreement, the governing regulation and notifications did not contain any provision for interest. The industry practice did not provide for it as well. In view thereof, interest could not be claimed either on the basis of equity or on the basis of restitution.31. In the circumstances, it is not possible to accept the submission that the Appellate Tribunal erred in any way in declining to award interest under Section 62 (6) of the Act. There was however, an error on its part in granting the same under the concept of equity, justice and fair-play.
### Response:
1
### Explanation:
the position the principles of equity, justice and fair-play could not have been brought in to award interest to the Electricity Boards.27. It is true that there was delay in the process of determination of the tariff. We are informed that the Commission became functional only on 15.5.1999. NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely Rajasthan Rajya Vidyut Vitaran Nigam Limited had obtained stay of proceedings before the Commission from the High Court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by the NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on to the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount.28. Submissions were advanced before us on the question as to whether the tariff determination under Section 62 was in any way legislative or quasi-judicial. The counsel for NTPC drew our attention to a number of judgments concerning price fixation.a. In West Bengal Electricity Regulatory Commission V. CESC (2002 (8) SCC 715 ), the court noted, in the context of electricity tariff determination under the Electricity Regulatory Commissions Act, 1998, that price fixation is in the nature of a legislative function, and hence, generally, no hearing is required. However, as the statute provides for a hearing opportunity, the same must be provided.b. Similar view was taken in this context in the following cases:(i) Levy sugar pricing under the Essential Commodities Act, 1955 has been held to be a legislative function in Shri Sitaram Sugar Mills Vs. UOI (1990 3 SCC 223 ), Saraswati Industrial Syndicate V. UOI (1974 (2) SCC 630 ), Malaprabha Sugars V. UOI (1994 1 SCC 648 ) and Mahalakshmi Sugar Mills V. UOI (2009 (16) SCC 569 ).c. Coal price fixation has been held to be a legislative function under the Essential Commodities Act, 1955 in Pallavi Refractories V. Singareni Collieries (2005 (2) SCC 227 ).d. Fixation of the price of Natural Gas under the Essential Commodities Act, 1955, is held to be legislative function in ONGC V. Assn. of Natural Gas Consuming Industries of Gujarat (1990 Supp. (1) SCC 397) .e. In Prag Ice and Oil Mills V. UOI (1978 (3) SCC 459 ), the court in the context of price fixation of oil under Essential Commodities Act, 1955, observed asthink that unless by the terms of particular statute or order, price fixation is made a quasi judicial function for specified purposes or cases, it is really legislative in character. The legislative measure does not concern itself to the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind of class.The counsel for the Electricity Boards, however, drew our attention to a recent judgment of a Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission reported in (2010 (4) SCC 603 ), wherein this Court has observed in para 50 asApplying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes "tariff" as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff.......In the facts of the present case, however, this controversy as to whether tariff fixation is legislative or quasi-judicial need not detain us any further. As held by the Constitution Bench, price fixation is really legislative in character, but since an appeal is provided under Section 111 of the Act, it takes a quasi-judicial colour. That by itself cannot justify the claim for interest during the period when the proceedings were pending for the tariff fixation. The tariff that was being charged at the relevant time was as per the previous notifications. Once the tariff was finalized subsequently, NTPC has adjusted the excess amount which it has received. It cannot be said that during this period the NTPC was claiming the charges in an unjust way, to make a case in equity. Our attention has been drawn to the industry practice which also shows that on all such occasions interest has never been either demanded or paid when the price fixation takes place. As held by us hereinabove, claim for interest could not be covered under Section 62 (6). The provision for interest has been introduced by regulations subsequent to the period which was under consideration before the Commission. If we apply the propositions in Rallia Ram (supra) and Watkins Mayor (supra), we find that the terms of the supply agreement, the governing regulation and notifications did not contain any provision for interest. The industry practice did not provide for it as well. In view thereof, interest could not be claimed either on the basis of equity or on the basis of restitution.31. In the circumstances, it is not possible to accept the submission that the Appellate Tribunal erred in any way in declining to award interest under Section 62 (6) of the Act. There was however, an error on its part in granting the same under the concept of equity, justice and fair-play.
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Takaseela Pedda Subba Reddy Vs. Pujari Padmavathamma & Ors | the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us.In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment-debtor. It was also argued by learned counsel for the appellant that the judgment debtor did not raise any objection before the Executing Court against continuing the sale of other proper- ties situated in village Gudipadu. It was next submitted that the 5th respondent/decree holder had obtained an other decree in O.S 19 of 1953 and the total amount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decree-holder had taken an order from the Executing Court for rateable distribution of the sale proceeds. It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extracted thus:"Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same."2. Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.3. | 0[ds]It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extractedCourt executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive thethis provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund. | 0 | 1,794 | 882 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us.In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment-debtor. It was also argued by learned counsel for the appellant that the judgment debtor did not raise any objection before the Executing Court against continuing the sale of other proper- ties situated in village Gudipadu. It was next submitted that the 5th respondent/decree holder had obtained an other decree in O.S 19 of 1953 and the total amount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decree-holder had taken an order from the Executing Court for rateable distribution of the sale proceeds. It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extracted thus:"Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same."2. Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.3.
### Response:
0
### Explanation:
It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extractedCourt executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive thethis provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.
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Rajesh & Others Vs. Rajbir Singh & Others | Claims Tribunal under sub- Section (6) of Section 158 has to be treated as an Application for Compensation. Section 158 (6) of the Act reads as follows: "158. Production of certain certificates, licence and permit in certain cases.-(1) to (5) xxx xxx xxx(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and, where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer." 17. Section 166 (4) of the Act reads as follows: - "166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act." 18. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under sub-Section (4) of Section 166 of the Act, read as under: "(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for compensation under this Act." 19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Vermas case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs.10,000/-. In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. 21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head Funeral Expenses. The Price Index, it is a fact has gone up in that regard also. The head Funeral Expenses does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of Funeral Expenses, in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-. 22. Petitioners have produced before this Court Annexure-P4 salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 01.01.2006, the deceased had a monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 01.01.2006, the salary certificate could not be produced before the Tribunal or the High Court. Applying the principles in Sarla Vermas case (supra) as explained in Santosh Devis case, and in the instant case, the compensation has to be re-assessed as follows: chart 23. The amount will carry interest @ 7.5% as awarded by the Tribunal from the date of the filing of the petition, viz., 26.11.2007 till realization. | 1[ds]19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on aissue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Vermas case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/. In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. Thathead of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept ofPetitioners have produced before this Courtsalary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 01.01.2006, the deceased had a monthly salary of Rs.It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 01.01.2006, the salary certificate could not be produced before the Tribunal or the High Court. | 1 | 3,349 | 427 | ### 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:
Claims Tribunal under sub- Section (6) of Section 158 has to be treated as an Application for Compensation. Section 158 (6) of the Act reads as follows: "158. Production of certain certificates, licence and permit in certain cases.-(1) to (5) xxx xxx xxx(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and, where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer." 17. Section 166 (4) of the Act reads as follows: - "166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act." 18. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under sub-Section (4) of Section 166 of the Act, read as under: "(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for compensation under this Act." 19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Vermas case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs.10,000/-. In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. 21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head Funeral Expenses. The Price Index, it is a fact has gone up in that regard also. The head Funeral Expenses does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of Funeral Expenses, in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-. 22. Petitioners have produced before this Court Annexure-P4 salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 01.01.2006, the deceased had a monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 01.01.2006, the salary certificate could not be produced before the Tribunal or the High Court. Applying the principles in Sarla Vermas case (supra) as explained in Santosh Devis case, and in the instant case, the compensation has to be re-assessed as follows: chart 23. The amount will carry interest @ 7.5% as awarded by the Tribunal from the date of the filing of the petition, viz., 26.11.2007 till realization.
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19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on aissue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Vermas case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/. In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. Thathead of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept ofPetitioners have produced before this Courtsalary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 01.01.2006, the deceased had a monthly salary of Rs.It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 01.01.2006, the salary certificate could not be produced before the Tribunal or the High Court.
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Sant Ram And Ors Vs. Labh Singh And Ors | considered reasonable in view of Art. 15 of the constitution.3. If this ruling applies the present appeal must succeed. Mr. B.C. Misra who appears for Labh Singh attempts to distinguish Bhau Rams case, (1962) Supp 3 SCR 724 :, (AIR 1962 SC 1476 ). He contends that the earlier case was concerned with a legislative measure whereas the present case of preemption arises from custom. He refers to the decision in Digambar Singh v. Ahmad Said Khan, 42 Ind App 10 at p. 18 : (AIR 1914 ) PC 11 at p. 14) where the Judicial Committee of the Privy Council has given the early history of the law of pre-emption in village communities in India and points out that the law off pre-emption had its origin in the Mohammedan Law and was the result, some times, of a contract between the sharers in a village. Mr. Misra contends that Arts. 14 and 15 are addressed to the state as defined in Art. 12 and are not applicable to custom or contract as neither, according to him, amounts to law within the definition given in Art. 13 (3) (b) of the Constitution. He submits that the ruling of this Court does not cover the present case and that it is necessary to consider the question of the validity of the customary law of pre-emption based on vicinage.4. It is hardly necessary to go into ancient law to discover the sources of the law of pre-emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Rams case, (1962) Supp SCR 124 : (AIR 1962 SC 1476 ) decides that law of pre-emption based on vicinage is void. The reasons given by this court to hold statue law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly Art. 19 (1) (f).Mr. Misra ingeniously points out in this connection that Art. 13(1) deals with "all laws in force" and custom is not included in the definition of the phrase "laws in force" in cl. (3)(b) of Art. 13. It is convenient to read Art. 13 at this stage :"13. (1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provision of this Part shall, to the extent of such inconsistency, be void.(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention, be void.(3) In this article, unless the context otherwise requires "(a) "Law" includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;(b) "law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and no previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. The argument of Mr. Misra is that the definition of "law" in Art. 13(3) (a) cannot be used for purposes of the first clause, because it is intended to define the word "law" in the second clause. According to him, the phrase "laws in force" which is used in cl. (I) is defined in (3) (b) and that definition alone governs the first clause, and as that definition takes no account of custom or usage, the law of pre-emption based on custom is unaffected by Ar.1. 19 (1) (f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "law in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such wise that none at the things mentioned in the first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the state and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "Customs or usage" would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of, the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the constitution and the determination of this Court in Bhau Rams case, (1962) Supp 3 SCR 724 : (AIR 1962 SC 1476 ). | 1[ds]The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "law in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such wise that none at the things mentioned in the first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the state and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "Customs or usage" would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of, the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the constitution and the determination of this Court in Bhau Rams case, (1962) Supp 3 SCR 724 : (AIR 1962 SC 1476 ). | 1 | 1,730 | 369 | ### Instruction:
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considered reasonable in view of Art. 15 of the constitution.3. If this ruling applies the present appeal must succeed. Mr. B.C. Misra who appears for Labh Singh attempts to distinguish Bhau Rams case, (1962) Supp 3 SCR 724 :, (AIR 1962 SC 1476 ). He contends that the earlier case was concerned with a legislative measure whereas the present case of preemption arises from custom. He refers to the decision in Digambar Singh v. Ahmad Said Khan, 42 Ind App 10 at p. 18 : (AIR 1914 ) PC 11 at p. 14) where the Judicial Committee of the Privy Council has given the early history of the law of pre-emption in village communities in India and points out that the law off pre-emption had its origin in the Mohammedan Law and was the result, some times, of a contract between the sharers in a village. Mr. Misra contends that Arts. 14 and 15 are addressed to the state as defined in Art. 12 and are not applicable to custom or contract as neither, according to him, amounts to law within the definition given in Art. 13 (3) (b) of the Constitution. He submits that the ruling of this Court does not cover the present case and that it is necessary to consider the question of the validity of the customary law of pre-emption based on vicinage.4. It is hardly necessary to go into ancient law to discover the sources of the law of pre-emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Rams case, (1962) Supp SCR 124 : (AIR 1962 SC 1476 ) decides that law of pre-emption based on vicinage is void. The reasons given by this court to hold statue law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly Art. 19 (1) (f).Mr. Misra ingeniously points out in this connection that Art. 13(1) deals with "all laws in force" and custom is not included in the definition of the phrase "laws in force" in cl. (3)(b) of Art. 13. It is convenient to read Art. 13 at this stage :"13. (1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provision of this Part shall, to the extent of such inconsistency, be void.(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention, be void.(3) In this article, unless the context otherwise requires "(a) "Law" includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;(b) "law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and no previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. The argument of Mr. Misra is that the definition of "law" in Art. 13(3) (a) cannot be used for purposes of the first clause, because it is intended to define the word "law" in the second clause. According to him, the phrase "laws in force" which is used in cl. (I) is defined in (3) (b) and that definition alone governs the first clause, and as that definition takes no account of custom or usage, the law of pre-emption based on custom is unaffected by Ar.1. 19 (1) (f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "law in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such wise that none at the things mentioned in the first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the state and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "Customs or usage" would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of, the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the constitution and the determination of this Court in Bhau Rams case, (1962) Supp 3 SCR 724 : (AIR 1962 SC 1476 ).
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1
### Explanation:
The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "law in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such wise that none at the things mentioned in the first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the state and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "Customs or usage" would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of, the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the constitution and the determination of this Court in Bhau Rams case, (1962) Supp 3 SCR 724 : (AIR 1962 SC 1476 ).
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Ahmedabad Manufacturing & Calico Printing Co. Ltd Vs. Workmen & Anr | Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.13. Counsel for the respondent union has contended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when t he appellant found that this Court was not favourably inclined to grant it. In these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the High Court in the sound exercise of its discretion was justified in dismissing the writ petition in limine. In support of this contention the learned counsel relied upon Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat. In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court. The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected. The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition in limine.14. Next, reliance was placed on A. M. Allison v. B. L. Sen. This Court dealing with the writ of certiorari observed as follows:"A writ of certiorari cannot be issued as a matter of course. The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference."15. There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost its efficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons. The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award. In that case the Supreme Court had dismissed the leave petition. The facts were thus materially different from the facts of the present appeal. Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trust (supra),16. After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally.17. | 1[ds]It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that the Company had withdrawn the leave petition. It was urged that the mere fact that the appellant chose to withdraw the leave petition after some arguments will not alter the nature of the order and that by no stretch of imagination can it be said that the leave petition had been dismissed by this Court. It may be, it was argued that the Company chose to withdraw the le ave petition on the ground that this Court was not favourably inclined to grant it or that the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a widerHigh Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected. The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition inis no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost itshaving analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawnthat case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court.The High Courtheld that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected. The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition inCourt dealing with the writ of certiorari observed aswrit of certiorari cannot be issued as a matter of course.The High Courtis entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference.s no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost itsefficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons. The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award. In that case the Supreme Court had dismissed the leave petition. The facts were thus materially different from the facts of the present appeal. Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trustng analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn | 1 | 3,513 | 1,632 | ### Instruction:
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Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.13. Counsel for the respondent union has contended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when t he appellant found that this Court was not favourably inclined to grant it. In these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the High Court in the sound exercise of its discretion was justified in dismissing the writ petition in limine. In support of this contention the learned counsel relied upon Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat. In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court. The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected. The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition in limine.14. Next, reliance was placed on A. M. Allison v. B. L. Sen. This Court dealing with the writ of certiorari observed as follows:"A writ of certiorari cannot be issued as a matter of course. The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference."15. There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost its efficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons. The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award. In that case the Supreme Court had dismissed the leave petition. The facts were thus materially different from the facts of the present appeal. Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trust (supra),16. After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally.17.
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Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost itshaving analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawnthat case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court.The High Courtheld that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected. The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition inCourt dealing with the writ of certiorari observed aswrit of certiorari cannot be issued as a matter of course.The High Courtis entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference.s no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allisons case has lost itsefficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons. The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award. In that case the Supreme Court had dismissed the leave petition. The facts were thus materially different from the facts of the present appeal. Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trustng analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn
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Uco Bank Vs. Comm.Of Income Tax, West Bengal | longer available to the assesses and those circulars could not be resorted to for the purpose of overcoming the provisions of the Act. Interestingly, the concurring judgment of the second judge has not dealt with this question at all but has decided the matter on the basis of other provisions of law. 16. The said circulars under Section 119 of the Income-tax Act were not placed before the Court in the correct perspective because the later circular continuing certain benefits to the assesses was overlooked and the withdrawn circular was looked upon as in conflict with law. Such circulars, however, are not meant for contradicting or nullifying any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation tot he provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income and in particular, national income as also the treatment of such national income under accounting practice. 17. In the premises the majority decision in the State Bank of Travancore v. Commissioner of Income-Tax (supra) cannot be looked upon as laying down that a circular which is properly issued under Section 119 of the Income-Tax Act for proper administration of the Act and for relieving the rigour of too literal a construction of the law for the benefit of the assessee in certain situations would not be binding on the departmental authorities. This would be contrary to the ratio laid down by the Bench of five judges in Navnitlal C. Javeri v. K.K. Sent (supra). In fact, State Bank of Travancore v. Commissioner of Income-Tax (supra) has already been distinguished in the case of Keshavji Ravji and Co. v. Commissioner of Income-Tax (supra) by a Bench of three judges in a similar fashion. It is held only as laying down that a circular cannot alter the provisions of the Act. It being in the nature of a concession, could always be prospectively withdrawn. In the present case, the circulars which have been in force are meant to ensure that while assessing the income accrued by way of interest on a sticky loan, the national interest which is transferred to a suspense account pertaining to doubtful loans would not be included in the income of the assessee, if for three years such interest is not actually received. The very fact that the assessee, although generally using a mercantile system of accounting, keeps such interest amounts in a suspense account and does not bring these amounts to the profit and loss account, goes to show that the assessee is following a mixed system of accounting by which such interest is included in its income only when it is actually received. Looking to the method of accounting so adopted by the assessee in such cases, the circulars which have been issued are consistent with the provisions of Section 145 and are meant to ensure that assesses of the kind specified who have to account for all such amounts of interest on doubtful loans are uniformly given the benefit under the circular and such interest amounts are not included in the income of the assessee until actually received if the conditions of the circular are satisfied. The circular of 9.10.1984 also serves another practical purpose of laying down a uniform test for the assessing authority to decide whether the interest income which is transferred to the suspense account is, in fact, arising in respect of a doubtful or sticky loan. This is done by providing that non-receipt of interest for the first three years will not be treated as interest on a doubtful loan. But if after three years the payment of interest is not received, from the fourth year onwards it will be treated as interest on a doubtful loan and will be added to the income only when it is actually received. Â39Â3 Å 18. We do not see any inconsistency or contradiction between the circular so issued and Section 145 of the Income-Tax Act. In fact, the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to Section 145 of the Income-Tax Act or illegal in any form. It is meant for a uniform administration of law by all the income tax authorities in a specific situation and, therefore, validly issued under Section 119 of the Income-Tax Act. As such, the circular would be binding on the department. 19. The other judgment on which reliance was placed by the Department was a judgment of a Bench of two judges of this Court in Kerala Financial Corporation v. Commissioner of Income Tax, 1994(4) SCC 375 where this Court, following the majority view in State Bank of Travancore v. Commissioner of Income Tax (supra) held that interest which had accrued on a sticky advance has to be treated as income of the assessee and taxable as such. It is said that ultimately, if the advance takes the shape of a bad debt, refund of the tax paid on the interest would become due and the same can be claimed by the assessee in accordance with law. For reasons set out above, we are not in agreement with the said judgment. The relevant circulars of C.B.D.T. cannot be ignored. The question is not whether a circular can override or detract from the provisions of the Act; the question is whether the circular seeks to mitigate the rigour of a particular section for the benefit of the assessee in certain specified circumstances. So long as such a circular is in force it would be binding on the departmental authorities in view of the provisions of Section 119 to ensure a uniform and proper administrative and application of the Income-Tax Act. | 1[ds]Under the accounting practice, interest which is transferred to the suspense account and not brought to the profit and loss account of the company is not treated as income. The question whether in a given case such accrual of the interest is doubtful or not, may also be problematic. If, therefore, the Board has considered it necessary to lay down a general test for deciding what is a doubtful debt, and directed that all income tax officers should treat such amounts as not forming part of the income of the assessee until realized, this direction by way of a circular cannot be considered as travelling beyond the powers of the Board under Section 119 of the Income Tax Act. Such a circular is binding under Section 119. The circular of 9th of October, 1984, therefore, provides a test for recognizing whether a claim for interest can be treated as a doubtful claim unlikely to be recovered or not. Test provided by the said circular is to see whether, at the end of three years, the amount of interest has, in fact, been recovered by the bank or not. If it is not recovered for a period of three years, then in the fourth year and onwards the claim for interest has to be treated as a doubtful claim which need not be included in the income of the assessee until it is actually recovered.15. There are, however, two decisions of this Court which have been strongly relied upon by the respondents in the present case. The first decision is the majority judgment in The State Bank of Travancore v. Commissioner of Income-Tax, Kerala, 1986(158) ITR 102 decided by a Bench of three Judges of this Court by a majority of two to one. This judgment directly deals with interest on sticky advances which have been debited to the customer but taken to the interest suspense account by a banking company. The majority judgment has referred to the circular of 6th of October, 1952 and its withdrawal by the second circular of 20th of June, 1978. The majority appears to have proceeded on the basis that by the second circular of 20th of June, 1978 the Central Board had directed that interest in the suspense account on sticky advances should be includable in the taxable income of the assessee and all pending cases should be disposed of keeping these instructions in view. The subsequent circular of 9th of October, 1984 by which, from the assessment year 1979-80 the banking companies were given the benefit of the circular of 9th of October, 1984, does not appear to have been pointed out to the Court. What was submitted before the Court was, that since such interest had been allowed to be exempted for more than half a century, the practice had transformed itself into law and this position should not have been deviated from. Nagativing this contention, the Court said that the question of how far the concept of real income enters into the question of taxability in the facts and circumstances of the case, and how far and to what extent the concept of real income should intermingle with the accrual of income, will have to be judged in the light of the provisions of the Act, the principles of accountancy recognised and followed, the feasibility. The Court said that the earlier circulars being executive in character cannot alter the provisions of the Act. These were in the nature of concessions which could always be prospectively withdrawn. The Court also observed that the circulars cannot detract from the Act. The decision of the Constitution Bench of this Court in Navnitlal C. Javeri v. K.K. Sen (supra), or the subsequent decision in K.P. Varghese v. Income Tax Officer (supra) also do not appear to have been pointed out to the Court. Since the later circular of 9.10.1984 was not pointed out to the Court, the Court naturally proceeded on the assumption that the benefit granted under the earlier circular was no longer available to the assesses and those circulars could not be resorted to for the purpose of overcoming the provisions of the Act. Interestingly, the concurring judgment of the second judge has not dealt with this question at all but has decided the matter on the basis of other provisions of law16. The said circulars under Section 119 of the Income-tax Act were not placed before the Court in the correct perspective because the later circular continuing certain benefits to the assesses was overlooked and the withdrawn circular was looked upon as in conflict with law. Such circulars, however, are not meant for contradicting or nullifying any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation tot he provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income and in particular, national income as also the treatment of such national income under accounting practice17. In the premises the majority decision in the State Bank of Travancore v. Commissioner of Income-Tax (supra) cannot be looked upon as laying down that a circular which is properly issued under Section 119 of the Income-Tax Act for proper administration of the Act and for relieving the rigour of too literal a construction of the law for the benefit of the assessee in certain situations would not be binding on the departmental authorities. This would be contrary to the ratio laid down by the Bench of five judges in Navnitlal C. Javeri v. K.K. Sent (supra). In fact, State Bank of Travancore v. Commissioner of Income-Tax (supra) has already been distinguished in the case of Keshavji Ravji and Co. v. Commissioner of Income-Tax (supra) by a Bench of three judges in a similar fashion. It is held only as laying down that a circular cannot alter the provisions of the Act. It being in the nature of a concession, could always be prospectively withdrawn. In the present case, the circulars which have been in force are meant to ensure that while assessing the income accrued by way of interest on a sticky loan, the national interest which is transferred to a suspense account pertaining to doubtful loans would not be included in the income of the assessee, if for three years such interest is not actually received. The very fact that the assessee, although generally using a mercantile system of accounting, keeps such interest amounts in a suspense account and does not bring these amounts to the profit and loss account, goes to show that the assessee is following a mixed system of accounting by which such interest is included in its income only when it is actually received. Looking to the method of accounting so adopted by the assessee in such cases, the circulars which have been issued are consistent with the provisions of Section 145 and are meant to ensure that assesses of the kind specified who have to account for all such amounts of interest on doubtful loans are uniformly given the benefit under the circular and such interest amounts are not included in the income of the assessee until actually received if the conditions of the circular are satisfied. The circular of 9.10.1984 also serves another practical purpose of laying down a uniform test for the assessing authority to decide whether the interest income which is transferred to the suspense account is, in fact, arising in respect of a doubtful or sticky loan. This is done by providing that non-receipt of interest for the first three years will not be treated as interest on a doubtful loan. But if after three years the payment of interest is not received, from the fourth year onwards it will be treated as interest on a doubtful loan and will be added to the income only when it is actually received.18. We do not see any inconsistency or contradiction between the circular so issued and Section 145 of the Income-Tax Act. In fact, the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to Section 145 of the Income-Tax Act or illegal in any form. It is meant for a uniform administration of law by all the income tax authorities in a specific situation and, therefore, validly issued under Section 119 of the Income-Tax Act. As such, the circular would be binding on the department19. The other judgment on which reliance was placed by the Department was a judgment of a Bench of two judges of this Court in Kerala Financial Corporation v. Commissioner of Income Tax, 1994(4) SCC 375 where this Court, following the majority view in State Bank of Travancore v. Commissioner of Income Tax (supra) held that interest which had accrued on a sticky advance has to be treated as income of the assessee and taxable as such. It is said that ultimately, if the advance takes the shape of a bad debt, refund of the tax paid on the interest would become due and the same can be claimed by the assessee in accordance with law. For reasons set out above, we are not in agreement with the said judgment. The relevant circulars of C.B.D.T. cannot be ignored. The question is not whether a circular can override or detract from the provisions of the Act; the question is whether the circular seeks to mitigate the rigour of a particular section for the benefit of the assessee in certain specified circumstances. So long as such a circular is in force it would be binding on the departmental authorities in view of the provisions of Section 119 to ensure a uniform and proper administrative and application of the Income-Tax Act.The question raised is similar to the question which we have considered in Civil Appeal No. 235 of 1996 pertaining to the United Commercial Bank Ltd. In these two appeals the relevant assessment years are 1972-73, 1973-74, 1974-75 and 1976-77. During these assessment years the circular which was in force was the circular of 6th of October, 1952. This circular, unlike the later circular of 9.10.1984 which applies to banking companies, applies to interest accruing to a money lender on loans entered in a suspense account because of the extreme unlikelihood of their being recovered. The circular is widely worded to include within its ambit a public financial institution such as the assessee. | 1 | 5,690 | 1,930 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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longer available to the assesses and those circulars could not be resorted to for the purpose of overcoming the provisions of the Act. Interestingly, the concurring judgment of the second judge has not dealt with this question at all but has decided the matter on the basis of other provisions of law. 16. The said circulars under Section 119 of the Income-tax Act were not placed before the Court in the correct perspective because the later circular continuing certain benefits to the assesses was overlooked and the withdrawn circular was looked upon as in conflict with law. Such circulars, however, are not meant for contradicting or nullifying any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation tot he provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income and in particular, national income as also the treatment of such national income under accounting practice. 17. In the premises the majority decision in the State Bank of Travancore v. Commissioner of Income-Tax (supra) cannot be looked upon as laying down that a circular which is properly issued under Section 119 of the Income-Tax Act for proper administration of the Act and for relieving the rigour of too literal a construction of the law for the benefit of the assessee in certain situations would not be binding on the departmental authorities. This would be contrary to the ratio laid down by the Bench of five judges in Navnitlal C. Javeri v. K.K. Sent (supra). In fact, State Bank of Travancore v. Commissioner of Income-Tax (supra) has already been distinguished in the case of Keshavji Ravji and Co. v. Commissioner of Income-Tax (supra) by a Bench of three judges in a similar fashion. It is held only as laying down that a circular cannot alter the provisions of the Act. It being in the nature of a concession, could always be prospectively withdrawn. In the present case, the circulars which have been in force are meant to ensure that while assessing the income accrued by way of interest on a sticky loan, the national interest which is transferred to a suspense account pertaining to doubtful loans would not be included in the income of the assessee, if for three years such interest is not actually received. The very fact that the assessee, although generally using a mercantile system of accounting, keeps such interest amounts in a suspense account and does not bring these amounts to the profit and loss account, goes to show that the assessee is following a mixed system of accounting by which such interest is included in its income only when it is actually received. Looking to the method of accounting so adopted by the assessee in such cases, the circulars which have been issued are consistent with the provisions of Section 145 and are meant to ensure that assesses of the kind specified who have to account for all such amounts of interest on doubtful loans are uniformly given the benefit under the circular and such interest amounts are not included in the income of the assessee until actually received if the conditions of the circular are satisfied. The circular of 9.10.1984 also serves another practical purpose of laying down a uniform test for the assessing authority to decide whether the interest income which is transferred to the suspense account is, in fact, arising in respect of a doubtful or sticky loan. This is done by providing that non-receipt of interest for the first three years will not be treated as interest on a doubtful loan. But if after three years the payment of interest is not received, from the fourth year onwards it will be treated as interest on a doubtful loan and will be added to the income only when it is actually received. Â39Â3 Å 18. We do not see any inconsistency or contradiction between the circular so issued and Section 145 of the Income-Tax Act. In fact, the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to Section 145 of the Income-Tax Act or illegal in any form. It is meant for a uniform administration of law by all the income tax authorities in a specific situation and, therefore, validly issued under Section 119 of the Income-Tax Act. As such, the circular would be binding on the department. 19. The other judgment on which reliance was placed by the Department was a judgment of a Bench of two judges of this Court in Kerala Financial Corporation v. Commissioner of Income Tax, 1994(4) SCC 375 where this Court, following the majority view in State Bank of Travancore v. Commissioner of Income Tax (supra) held that interest which had accrued on a sticky advance has to be treated as income of the assessee and taxable as such. It is said that ultimately, if the advance takes the shape of a bad debt, refund of the tax paid on the interest would become due and the same can be claimed by the assessee in accordance with law. For reasons set out above, we are not in agreement with the said judgment. The relevant circulars of C.B.D.T. cannot be ignored. The question is not whether a circular can override or detract from the provisions of the Act; the question is whether the circular seeks to mitigate the rigour of a particular section for the benefit of the assessee in certain specified circumstances. So long as such a circular is in force it would be binding on the departmental authorities in view of the provisions of Section 119 to ensure a uniform and proper administrative and application of the Income-Tax Act.
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any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation tot he provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income and in particular, national income as also the treatment of such national income under accounting practice17. In the premises the majority decision in the State Bank of Travancore v. Commissioner of Income-Tax (supra) cannot be looked upon as laying down that a circular which is properly issued under Section 119 of the Income-Tax Act for proper administration of the Act and for relieving the rigour of too literal a construction of the law for the benefit of the assessee in certain situations would not be binding on the departmental authorities. This would be contrary to the ratio laid down by the Bench of five judges in Navnitlal C. Javeri v. K.K. Sent (supra). In fact, State Bank of Travancore v. Commissioner of Income-Tax (supra) has already been distinguished in the case of Keshavji Ravji and Co. v. Commissioner of Income-Tax (supra) by a Bench of three judges in a similar fashion. It is held only as laying down that a circular cannot alter the provisions of the Act. It being in the nature of a concession, could always be prospectively withdrawn. In the present case, the circulars which have been in force are meant to ensure that while assessing the income accrued by way of interest on a sticky loan, the national interest which is transferred to a suspense account pertaining to doubtful loans would not be included in the income of the assessee, if for three years such interest is not actually received. The very fact that the assessee, although generally using a mercantile system of accounting, keeps such interest amounts in a suspense account and does not bring these amounts to the profit and loss account, goes to show that the assessee is following a mixed system of accounting by which such interest is included in its income only when it is actually received. Looking to the method of accounting so adopted by the assessee in such cases, the circulars which have been issued are consistent with the provisions of Section 145 and are meant to ensure that assesses of the kind specified who have to account for all such amounts of interest on doubtful loans are uniformly given the benefit under the circular and such interest amounts are not included in the income of the assessee until actually received if the conditions of the circular are satisfied. The circular of 9.10.1984 also serves another practical purpose of laying down a uniform test for the assessing authority to decide whether the interest income which is transferred to the suspense account is, in fact, arising in respect of a doubtful or sticky loan. This is done by providing that non-receipt of interest for the first three years will not be treated as interest on a doubtful loan. But if after three years the payment of interest is not received, from the fourth year onwards it will be treated as interest on a doubtful loan and will be added to the income only when it is actually received.18. We do not see any inconsistency or contradiction between the circular so issued and Section 145 of the Income-Tax Act. In fact, the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to Section 145 of the Income-Tax Act or illegal in any form. It is meant for a uniform administration of law by all the income tax authorities in a specific situation and, therefore, validly issued under Section 119 of the Income-Tax Act. As such, the circular would be binding on the department19. The other judgment on which reliance was placed by the Department was a judgment of a Bench of two judges of this Court in Kerala Financial Corporation v. Commissioner of Income Tax, 1994(4) SCC 375 where this Court, following the majority view in State Bank of Travancore v. Commissioner of Income Tax (supra) held that interest which had accrued on a sticky advance has to be treated as income of the assessee and taxable as such. It is said that ultimately, if the advance takes the shape of a bad debt, refund of the tax paid on the interest would become due and the same can be claimed by the assessee in accordance with law. For reasons set out above, we are not in agreement with the said judgment. The relevant circulars of C.B.D.T. cannot be ignored. The question is not whether a circular can override or detract from the provisions of the Act; the question is whether the circular seeks to mitigate the rigour of a particular section for the benefit of the assessee in certain specified circumstances. So long as such a circular is in force it would be binding on the departmental authorities in view of the provisions of Section 119 to ensure a uniform and proper administrative and application of the Income-Tax Act.The question raised is similar to the question which we have considered in Civil Appeal No. 235 of 1996 pertaining to the United Commercial Bank Ltd. In these two appeals the relevant assessment years are 1972-73, 1973-74, 1974-75 and 1976-77. During these assessment years the circular which was in force was the circular of 6th of October, 1952. This circular, unlike the later circular of 9.10.1984 which applies to banking companies, applies to interest accruing to a money lender on loans entered in a suspense account because of the extreme unlikelihood of their being recovered. The circular is widely worded to include within its ambit a public financial institution such as the assessee.
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State of Madras Vs. M. N. A. Abdul Rahiman | SHAH, J.1. The respondents are dealers in tobacco and tobacco products and were assessed to sales tax for the years 1956-57 and 1957-58 in respect of their turnover on sales of chewing tobacco. Their objections to assessment of turnover from sale of chewing tobacco were overruled by the taxing authority and by the appellate authorities. The orders of the Tribunal were confirmed by the High Court of Judicature at Madras in revision.2. In this group of appeals, three questions were raised before the High Court :(1) that the respondents were not liable to tax on their sales in respect of chewing tobacco prepared by them;(2) that the cost of packing material should be excluded from the taxable turnover; and(3) that they were entitled to the deduction of the excise duty paid by them on the raw tobacco produced by them and from which they manufactured chewing tobacco.3. In view of the judgment of this Court in The State of Madras v. Swasthik Tobacco Factory ([1966] 17 S.T.C. 316) and The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos. 1071-1077 of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), counsel for the respondents have not sought to contend that they were entitled to deduction of the excise duty paid on raw tobacco in the computation of taxable turnover of the sale of chewing tobacco. The question whether the value of packing materials may be included in the taxable turnover can obviously not arise in the appeals filed by the State.4. For the reasons which we have set out in the judgment in The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos. 1071-1077 of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), these appeals will be allowed. | 1[ds]3. In view of the judgment of this Court in The State of Madras v. Swasthik Tobacco Factory ([1966] 17 S.T.C. 316) and The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos.of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), counsel for the respondents have not sought to contend that they were entitled to deduction of the excise duty paid on raw tobacco in the computation of taxable turnover of the sale of chewing tobacco. The question whether the value of packing materials may be included in the taxable turnover can obviously not arise in the appeals filed by the State.4. For the reasons which we have set out in the judgment in The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos.of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), these appeals will be allowed. | 1 | 343 | 178 | ### 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:
SHAH, J.1. The respondents are dealers in tobacco and tobacco products and were assessed to sales tax for the years 1956-57 and 1957-58 in respect of their turnover on sales of chewing tobacco. Their objections to assessment of turnover from sale of chewing tobacco were overruled by the taxing authority and by the appellate authorities. The orders of the Tribunal were confirmed by the High Court of Judicature at Madras in revision.2. In this group of appeals, three questions were raised before the High Court :(1) that the respondents were not liable to tax on their sales in respect of chewing tobacco prepared by them;(2) that the cost of packing material should be excluded from the taxable turnover; and(3) that they were entitled to the deduction of the excise duty paid by them on the raw tobacco produced by them and from which they manufactured chewing tobacco.3. In view of the judgment of this Court in The State of Madras v. Swasthik Tobacco Factory ([1966] 17 S.T.C. 316) and The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos. 1071-1077 of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), counsel for the respondents have not sought to contend that they were entitled to deduction of the excise duty paid on raw tobacco in the computation of taxable turnover of the sale of chewing tobacco. The question whether the value of packing materials may be included in the taxable turnover can obviously not arise in the appeals filed by the State.4. For the reasons which we have set out in the judgment in The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos. 1071-1077 of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), these appeals will be allowed.
### Response:
1
### Explanation:
3. In view of the judgment of this Court in The State of Madras v. Swasthik Tobacco Factory ([1966] 17 S.T.C. 316) and The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos.of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), counsel for the respondents have not sought to contend that they were entitled to deduction of the excise duty paid on raw tobacco in the computation of taxable turnover of the sale of chewing tobacco. The question whether the value of packing materials may be included in the taxable turnover can obviously not arise in the appeals filed by the State.4. For the reasons which we have set out in the judgment in The State of Madras v. M/s. Bell Mark Tobacco Company (C.As. Nos.of 1965 decided on October 4, 1966; [1967] 19 S.T.C. 129), these appeals will be allowed.
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Hindustan Hosiery Industries Vs. F. H. Lala And Another | consider the position from the point of view of the worker; the capacity of the employer to pay such a wage being irrelevant. The fair wage also must take note of the economic reality of the situation and the minimum needs of the worker having a fair-sized family with an eye to the preservation of his efficiency as a worker.17. Wage fixation is an important subject in any social welfare programme. Wage cannot be fixed in a vacuum and has necessarily to take note of so many factors from real life a worker lives, or is reasonably expected to live or to look forward to with hope and fervency in the entire social context. It is obvious that some principles have to be evolved from the conditions and circumstances of actual life.18. Piece-rate is what is paid by results or out-turn of work which is often described as a "task". There is greater consideration to quantity in fixing piece rates in some particular types of work in some industries with a guaranteed minimum. The same standard may not be appropriate in all types of piece work. With reference to particular work the importance of man rather than the machine employed may have to be dealt with differently. Even in piece rates it will be necessary to look around to find some correlation with time rates of the same or similar class of worker, for example, the contribution of the worker to the job, the nature of the work, the part played by the machine, the incentive to work and above all protection against any creation of industrial unrest because of the existence side by side of two categories of workers, particularly if there is no possibility of transfer of labour from one type of work to the other from time to time. Again there may be some work where special skill of the worker with or without machine may be necessary and that factor will have to be then considered. It will vary from industry to industry and from one process to another. No hard and fast rule can be laid down nor is it possible or helpful. The Tribunal, in an industrial adjudication, will have to see that piece-rates do not drive workers to fatigue to the limit of exhaustion and hence will keep an eye on the time factor in work. Then again a guaranteed minimum may also have to be provided so that for no fault of a diligent worker be does not stand to lose on any account. There may be a misty penumbra which has got to be pierced through upon all available materials on record and also on what the Tribunal in fairness, can lay its hands, with notice to the parties, can lay its hands, with notice to the parties, for the purpose of fixing the piece rates balancing all aspects. We have only indicated broadly the bare outlines of approach in a matter so involved and sensitive as wage fixation particularly when no one at the present time can shut ones eye to the rising spiral of prices of essential commodities. The central figure in the adjudication, however, is the wage earner who should have a fair deal in the bargain in a real sense as far as can be without at the same time ignoring the vital interest of the industry whose viability and prosperity are also the mainstay of labour. How the various competing claims have to be balanced in a given case should mainly be the function of an impartial adjudicator in an industrial proceeding unless the legislature chooses to adopt other appropriate means and methods. Article 136 of the Constitution does not create a right of appeal in favour of any person. It confers power on the Court which should not be so exercised as to convert the Court into a Court of appeal. "Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts. A free and liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace. Though Article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation the principles of natural justice, causing substantial and grave injustice to parties or raise an important principle of industrial law requiring elucidation and final decision by this Court or disclose such other exceptional or special circumstances which merit the consideration of this Court".(Per Subba Rao, J., in Bengal Chemical and Pharmaceutical Works Ltd. v. Their Workmen, 1959 Supp (2) SCR 136 at p. 140 : (AIR 1959 SC 633 )).None of the arguments raised by the appellant should be sufficient to persuade the Court to interpose relief in its favour on the facts and circumstances of this case. It is not quite correct to say that the Industrial Court has not followed the principles of wage-revision expounded by this Court. The Industrial Court has taken into account the prevailing minimum wage rates in the region, and the capacity of the appellant to bear the burden of the increased wages. Counsel for the appellants could not show to us that the wage rates fixed by the Industrial Court are unfair for the appellant or that it cannot bear the load of increased wages. The wages of the piece-rated workmen had to be increased in line with the increased wages of the time-rated workmen with the object of avoiding discrimination and heart-burning among workers and maintenance of industrial peace among them. Taking a comprehensive view of the facts and circumstances of the case, we are satisfied that no intervention is called for with the award. | 0[ds]9. It is well settled that no industry can be allowed to carry on its business, if it is unable to pay the minimum wage to its employees. The industry with which we are concerned is, however, not a scheduled industry in which the State Government has fixed any minimum wage under the Minimum Wages Act. The appellant submitted from certain Gazette Notifications the minimum rates of wages prescribed by the State Government in case of some eight different industries between the years 1969 and 1972 where the monthly wages have been fixed between Rs. 90/- and Rs. 128/- per month. The appellant submits that there is no justification whatsoever for allowing the present increase of wages without following any principle and even higher than the statutory minimum wage fixed in respect of other industries in the State.From an examination of the decision of this Court, it is clear that the floor level is the bare minimum wage or subsistence wage. In fixing this wage, Industrial Tribunals will have to consider the position from the point of view of the worker; the capacity of the employer to pay such a wage being irrelevant. The fair wage also must take note of the economic reality of the situation and the minimum needs of the worker having a fair-sized family with an eye to the preservation of his efficiency as a worker.17. Wage fixation is an important subject in any social welfare programme. Wage cannot be fixed in a vacuum and has necessarily to take note of so many factors from real life a worker lives, or is reasonably expected to live or to look forward to with hope and fervency in the entire social context. It is obvious that some principles have to be evolved from the conditions and circumstances of actual life.18. Piece-rate is what is paid by results or out-turn of work which is often described as a "task". There is greater consideration to quantity in fixing piece rates in some particular types of work in some industries with a guaranteed minimum. The same standard may not be appropriate in all types of piece work. With reference to particular work the importance of man rather than the machine employed may have to be dealt with differently. Even in piece rates it will be necessary to look around to find some correlation with time rates of the same or similar class of worker, for example, the contribution of the worker to the job, the nature of the work, the part played by the machine, the incentive to work and above all protection against any creation of industrial unrest because of the existence side by side of two categories of workers, particularly if there is no possibility of transfer of labour from one type of work to the other from time to time. Again there may be some work where special skill of the worker with or without machine may be necessary and that factor will have to be then considered. It will vary from industry to industry and from one process to another. No hard and fast rule can be laid down nor is it possible or helpful. The Tribunal, in an industrial adjudication, will have to see that piece-rates do not drive workers to fatigue to the limit of exhaustion and hence will keep an eye on the time factor in work. Then again a guaranteed minimum may also have to be provided so that for no fault of a diligent worker be does not stand to lose on any account. There may be a misty penumbra which has got to be pierced through upon all available materials on record and also on what the Tribunal in fairness, can lay its hands, with notice to the parties, can lay its hands, with notice to the parties, for the purpose of fixing the piece rates balancing all aspects. We have only indicated broadly the bare outlines of approach in a matter so involved and sensitive as wage fixation particularly when no one at the present time can shut ones eye to the rising spiral of prices of essential commodities. The central figure in the adjudication, however, is the wage earner who should have a fair deal in the bargain in a real sense as far as can be without at the same time ignoring the vital interest of the industry whose viability and prosperity are also the mainstay of labour. How the various competing claims have to be balanced in a given case should mainly be the function of an impartial adjudicator in an industrial proceeding unless the legislature chooses to adopt other appropriate means and methods. Article 136 of the Constitution does not create a right of appeal in favour of any person. It confers power on the Court which should not be so exercised as to convert the Court into a Court ofof the arguments raised by the appellant should be sufficient to persuade the Court to interpose relief in its favour on the facts and circumstances of this case. It is not quite correct to say that the Industrial Court has not followed the principles of wage-revision expounded by this Court. The Industrial Court has taken into account the prevailing minimum wage rates in the region, and the capacity of the appellant to bear the burden of the increased wages. Counsel for the appellants could not show to us that the wage rates fixed by the Industrial Court are unfair for the appellant or that it cannot bear the load of increased wages. The wages of the piece-rated workmen had to be increased in line with the increased wages of the time-rated workmen with the object of avoiding discrimination and heart-burning among workers and maintenance of industrial peace among them. Taking a comprehensive view of the facts and circumstances of the case, we are satisfied that no intervention is called for with the award. | 0 | 4,888 | 1,052 | ### 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:
consider the position from the point of view of the worker; the capacity of the employer to pay such a wage being irrelevant. The fair wage also must take note of the economic reality of the situation and the minimum needs of the worker having a fair-sized family with an eye to the preservation of his efficiency as a worker.17. Wage fixation is an important subject in any social welfare programme. Wage cannot be fixed in a vacuum and has necessarily to take note of so many factors from real life a worker lives, or is reasonably expected to live or to look forward to with hope and fervency in the entire social context. It is obvious that some principles have to be evolved from the conditions and circumstances of actual life.18. Piece-rate is what is paid by results or out-turn of work which is often described as a "task". There is greater consideration to quantity in fixing piece rates in some particular types of work in some industries with a guaranteed minimum. The same standard may not be appropriate in all types of piece work. With reference to particular work the importance of man rather than the machine employed may have to be dealt with differently. Even in piece rates it will be necessary to look around to find some correlation with time rates of the same or similar class of worker, for example, the contribution of the worker to the job, the nature of the work, the part played by the machine, the incentive to work and above all protection against any creation of industrial unrest because of the existence side by side of two categories of workers, particularly if there is no possibility of transfer of labour from one type of work to the other from time to time. Again there may be some work where special skill of the worker with or without machine may be necessary and that factor will have to be then considered. It will vary from industry to industry and from one process to another. No hard and fast rule can be laid down nor is it possible or helpful. The Tribunal, in an industrial adjudication, will have to see that piece-rates do not drive workers to fatigue to the limit of exhaustion and hence will keep an eye on the time factor in work. Then again a guaranteed minimum may also have to be provided so that for no fault of a diligent worker be does not stand to lose on any account. There may be a misty penumbra which has got to be pierced through upon all available materials on record and also on what the Tribunal in fairness, can lay its hands, with notice to the parties, can lay its hands, with notice to the parties, for the purpose of fixing the piece rates balancing all aspects. We have only indicated broadly the bare outlines of approach in a matter so involved and sensitive as wage fixation particularly when no one at the present time can shut ones eye to the rising spiral of prices of essential commodities. The central figure in the adjudication, however, is the wage earner who should have a fair deal in the bargain in a real sense as far as can be without at the same time ignoring the vital interest of the industry whose viability and prosperity are also the mainstay of labour. How the various competing claims have to be balanced in a given case should mainly be the function of an impartial adjudicator in an industrial proceeding unless the legislature chooses to adopt other appropriate means and methods. Article 136 of the Constitution does not create a right of appeal in favour of any person. It confers power on the Court which should not be so exercised as to convert the Court into a Court of appeal. "Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts. A free and liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace. Though Article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation the principles of natural justice, causing substantial and grave injustice to parties or raise an important principle of industrial law requiring elucidation and final decision by this Court or disclose such other exceptional or special circumstances which merit the consideration of this Court".(Per Subba Rao, J., in Bengal Chemical and Pharmaceutical Works Ltd. v. Their Workmen, 1959 Supp (2) SCR 136 at p. 140 : (AIR 1959 SC 633 )).None of the arguments raised by the appellant should be sufficient to persuade the Court to interpose relief in its favour on the facts and circumstances of this case. It is not quite correct to say that the Industrial Court has not followed the principles of wage-revision expounded by this Court. The Industrial Court has taken into account the prevailing minimum wage rates in the region, and the capacity of the appellant to bear the burden of the increased wages. Counsel for the appellants could not show to us that the wage rates fixed by the Industrial Court are unfair for the appellant or that it cannot bear the load of increased wages. The wages of the piece-rated workmen had to be increased in line with the increased wages of the time-rated workmen with the object of avoiding discrimination and heart-burning among workers and maintenance of industrial peace among them. Taking a comprehensive view of the facts and circumstances of the case, we are satisfied that no intervention is called for with the award.
### Response:
0
### Explanation:
9. It is well settled that no industry can be allowed to carry on its business, if it is unable to pay the minimum wage to its employees. The industry with which we are concerned is, however, not a scheduled industry in which the State Government has fixed any minimum wage under the Minimum Wages Act. The appellant submitted from certain Gazette Notifications the minimum rates of wages prescribed by the State Government in case of some eight different industries between the years 1969 and 1972 where the monthly wages have been fixed between Rs. 90/- and Rs. 128/- per month. The appellant submits that there is no justification whatsoever for allowing the present increase of wages without following any principle and even higher than the statutory minimum wage fixed in respect of other industries in the State.From an examination of the decision of this Court, it is clear that the floor level is the bare minimum wage or subsistence wage. In fixing this wage, Industrial Tribunals will have to consider the position from the point of view of the worker; the capacity of the employer to pay such a wage being irrelevant. The fair wage also must take note of the economic reality of the situation and the minimum needs of the worker having a fair-sized family with an eye to the preservation of his efficiency as a worker.17. Wage fixation is an important subject in any social welfare programme. Wage cannot be fixed in a vacuum and has necessarily to take note of so many factors from real life a worker lives, or is reasonably expected to live or to look forward to with hope and fervency in the entire social context. It is obvious that some principles have to be evolved from the conditions and circumstances of actual life.18. Piece-rate is what is paid by results or out-turn of work which is often described as a "task". There is greater consideration to quantity in fixing piece rates in some particular types of work in some industries with a guaranteed minimum. The same standard may not be appropriate in all types of piece work. With reference to particular work the importance of man rather than the machine employed may have to be dealt with differently. Even in piece rates it will be necessary to look around to find some correlation with time rates of the same or similar class of worker, for example, the contribution of the worker to the job, the nature of the work, the part played by the machine, the incentive to work and above all protection against any creation of industrial unrest because of the existence side by side of two categories of workers, particularly if there is no possibility of transfer of labour from one type of work to the other from time to time. Again there may be some work where special skill of the worker with or without machine may be necessary and that factor will have to be then considered. It will vary from industry to industry and from one process to another. No hard and fast rule can be laid down nor is it possible or helpful. The Tribunal, in an industrial adjudication, will have to see that piece-rates do not drive workers to fatigue to the limit of exhaustion and hence will keep an eye on the time factor in work. Then again a guaranteed minimum may also have to be provided so that for no fault of a diligent worker be does not stand to lose on any account. There may be a misty penumbra which has got to be pierced through upon all available materials on record and also on what the Tribunal in fairness, can lay its hands, with notice to the parties, can lay its hands, with notice to the parties, for the purpose of fixing the piece rates balancing all aspects. We have only indicated broadly the bare outlines of approach in a matter so involved and sensitive as wage fixation particularly when no one at the present time can shut ones eye to the rising spiral of prices of essential commodities. The central figure in the adjudication, however, is the wage earner who should have a fair deal in the bargain in a real sense as far as can be without at the same time ignoring the vital interest of the industry whose viability and prosperity are also the mainstay of labour. How the various competing claims have to be balanced in a given case should mainly be the function of an impartial adjudicator in an industrial proceeding unless the legislature chooses to adopt other appropriate means and methods. Article 136 of the Constitution does not create a right of appeal in favour of any person. It confers power on the Court which should not be so exercised as to convert the Court into a Court ofof the arguments raised by the appellant should be sufficient to persuade the Court to interpose relief in its favour on the facts and circumstances of this case. It is not quite correct to say that the Industrial Court has not followed the principles of wage-revision expounded by this Court. The Industrial Court has taken into account the prevailing minimum wage rates in the region, and the capacity of the appellant to bear the burden of the increased wages. Counsel for the appellants could not show to us that the wage rates fixed by the Industrial Court are unfair for the appellant or that it cannot bear the load of increased wages. The wages of the piece-rated workmen had to be increased in line with the increased wages of the time-rated workmen with the object of avoiding discrimination and heart-burning among workers and maintenance of industrial peace among them. Taking a comprehensive view of the facts and circumstances of the case, we are satisfied that no intervention is called for with the award.
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Kamakshaya Narayan Singh Vs. Chohan Ram & Another | ground that as he had acquired the property in the condition in which it was when mortgaged, the lease which would otherwise run till 7th July 1872, did not bind him. The Court of first instance overruled this contention as too broadly formulated, and held that as the mortagor had in good faith granted the lease for a limited term on a fair and reasonable rent, the mortgagee or the purchaser in execution of his decree could not repudite it, specially as the mortgage deed did not prohibit the grant of temporary leases to middlemen or cultivators. On appeal, the District Judge affirment this view and declined to accept the broad contention that leases of all descriptions granted by a mortgagor were void as against the mortgagee. On second appeal to this Court, Jackson and Mitter JJ. took substantially the same view."9. These observations of Mookerjee J. point out what was ratio decidendiof that case. The question of the sufficiency or insufficiency of the security was not really gone into but the Court considered that the lease was granted in good faith, was for a limited term and stipulated a fair and reasonable rent and it was therefore operative against the mortgagee. The Court was really guided by the consideration that the mortgagor dealt with the property in the usual course of management and the interest which was thus created by the mortgagor in the usual course must rightly be deemed operative against the mortgagee. The case of Banee Pershad v. Rest Bhunjan Singh(10 W. R. 325 cal.) therefore is really no authority for the wide proposition that a mortgagor was not restricted in the management of the property by making a mortgage and that so long as nothing took place to impair the value or impede the operation of the mortgage the mortgagor would be well within his powers in making a lease for a tem.10.In our opinion S. 66, T. P. Act, has nothing to do with the mortgagors power to lease the mortgaged property. Section 66 is a statutory enactment of the powers of the mortgagor in possession in regard to waste of mortgaged property. The mortgagor in possession is not liable for what in terms of the English Law of Real Property is known as permissive waste i.e., for omission to repair or to prevent natural deterioration. He is, however, liable for destructive waste i.e. acts which are destructive or permanently injurious to the mortgaged property if the security was insufficient or would be rendered insufficient by such acts. This section therefore has no application to the grant of a lease by the mortgagor in possession.11. The only relevant consideration is whether, the mortgagor in possession having the authority to deal with the property in the usual course of management, the lease granted by him can be rightly deemed operative against the mortgagee. The true position has been stated in the following terms by Mukherjee J. in Madan Mohan Singh v. Raj Kishore,21 cal. W. N. 88 at p. 92:"The true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage."12. The question whether the mortgagor in possession has power to lease the mortgaged property has got to be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual course of management. It has to be determined on general principles and not on the distinction between an English mortgage and a simple mortgage or on considerations germane to S. 66, T. P. Act. Having regard therefore to the position that S. 66 has no application to leases of the mortgaged property, the decision of Jenkins C. J. in Balmukund v. Motilal,20 cal. W. N. 350, and the cases following that line of reasoning do not govern the question before us.13. While we are on this subject we would like to emphasise that it is in for the lessee if he wants to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management. Such a plea if established - and it must not be overlooked that the burden of proof in this matter is upon him - would furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position he would have certainly no defence to an action at the instance of the mortgagee.14. No allegation was made on behalf of the defendants that the grant of the permanent lease was a dealing with the mortgaged property in the usual course of management by the mortgagor. In the absence of any such plea, we are of the opinion that there was no answer to the plaintiffs claim and the permanent lease granted by Wazir Narayan to the defendants could not prevail against the plaintiff.15. We have therefore come to the conclusion that Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the same was not binding and operative against the plaintiff, that the defendants had ample opportunity to redeem the mortgage if they so desired but did not choose to exercise their right of redemption, that the execution sale of Gudi Sirampur including the four villages in question was binding on them and that the plaintiff was entitled to khas possession of the four villages of which the defendants were in wrongful possession. | 1[ds]10.In our opinion S. 66, T. P. Act, has nothing to do with the mortgagors power to lease the mortgaged property. Section 66 is a statutory enactment of the powers of the mortgagor in possession in regard to waste of mortgaged property. The mortgagor in possession is not liable for what in terms of the English Law of Real Property is known as permissive waste i.e., for omission to repair or to prevent natural deterioration. He is, however, liable for destructive waste i.e. acts which are destructive or permanently injurious to the mortgaged property if the security was insufficient or would be rendered insufficient by such acts. This section therefore has no application to the grant of a lease by the mortgagor intrue position has been stated in the following terms by Mukherjee J. in Madan Mohan Singh v. Raj Kishore,21 cal. W. N. 88 at p.true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage.While we are on this subject we would like to emphasise that it is in for the lessee if he wants to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management. Such a plea if established - and it must not be overlooked that the burden of proof in this matter is upon him - would furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position he would have certainly no defence to an action at the instance of the mortgagee.No allegation was made on behalf of the defendants that the grant of the permanent lease was a dealing with the mortgaged property in the usual course of management by the mortgagor. In the absence of any such plea, we are of the opinion that there was no answer to the plaintiffs claim and the permanent lease granted by Wazir Narayan to the defendants could not prevail against the plaintiff.15. We have therefore come to the conclusion that Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the same was not binding and operative against the plaintiff, that the defendants had ample opportunity to redeem the mortgage if they so desired but did not choose to exercise their right of redemption, that the execution sale of Gudi Sirampur including the four villages in question was binding on them and that the plaintiff was entitled to khas possession of the four villages of which the defendants were in wrongful possession. | 1 | 3,562 | 544 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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ground that as he had acquired the property in the condition in which it was when mortgaged, the lease which would otherwise run till 7th July 1872, did not bind him. The Court of first instance overruled this contention as too broadly formulated, and held that as the mortagor had in good faith granted the lease for a limited term on a fair and reasonable rent, the mortgagee or the purchaser in execution of his decree could not repudite it, specially as the mortgage deed did not prohibit the grant of temporary leases to middlemen or cultivators. On appeal, the District Judge affirment this view and declined to accept the broad contention that leases of all descriptions granted by a mortgagor were void as against the mortgagee. On second appeal to this Court, Jackson and Mitter JJ. took substantially the same view."9. These observations of Mookerjee J. point out what was ratio decidendiof that case. The question of the sufficiency or insufficiency of the security was not really gone into but the Court considered that the lease was granted in good faith, was for a limited term and stipulated a fair and reasonable rent and it was therefore operative against the mortgagee. The Court was really guided by the consideration that the mortgagor dealt with the property in the usual course of management and the interest which was thus created by the mortgagor in the usual course must rightly be deemed operative against the mortgagee. The case of Banee Pershad v. Rest Bhunjan Singh(10 W. R. 325 cal.) therefore is really no authority for the wide proposition that a mortgagor was not restricted in the management of the property by making a mortgage and that so long as nothing took place to impair the value or impede the operation of the mortgage the mortgagor would be well within his powers in making a lease for a tem.10.In our opinion S. 66, T. P. Act, has nothing to do with the mortgagors power to lease the mortgaged property. Section 66 is a statutory enactment of the powers of the mortgagor in possession in regard to waste of mortgaged property. The mortgagor in possession is not liable for what in terms of the English Law of Real Property is known as permissive waste i.e., for omission to repair or to prevent natural deterioration. He is, however, liable for destructive waste i.e. acts which are destructive or permanently injurious to the mortgaged property if the security was insufficient or would be rendered insufficient by such acts. This section therefore has no application to the grant of a lease by the mortgagor in possession.11. The only relevant consideration is whether, the mortgagor in possession having the authority to deal with the property in the usual course of management, the lease granted by him can be rightly deemed operative against the mortgagee. The true position has been stated in the following terms by Mukherjee J. in Madan Mohan Singh v. Raj Kishore,21 cal. W. N. 88 at p. 92:"The true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage."12. The question whether the mortgagor in possession has power to lease the mortgaged property has got to be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual course of management. It has to be determined on general principles and not on the distinction between an English mortgage and a simple mortgage or on considerations germane to S. 66, T. P. Act. Having regard therefore to the position that S. 66 has no application to leases of the mortgaged property, the decision of Jenkins C. J. in Balmukund v. Motilal,20 cal. W. N. 350, and the cases following that line of reasoning do not govern the question before us.13. While we are on this subject we would like to emphasise that it is in for the lessee if he wants to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management. Such a plea if established - and it must not be overlooked that the burden of proof in this matter is upon him - would furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position he would have certainly no defence to an action at the instance of the mortgagee.14. No allegation was made on behalf of the defendants that the grant of the permanent lease was a dealing with the mortgaged property in the usual course of management by the mortgagor. In the absence of any such plea, we are of the opinion that there was no answer to the plaintiffs claim and the permanent lease granted by Wazir Narayan to the defendants could not prevail against the plaintiff.15. We have therefore come to the conclusion that Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the same was not binding and operative against the plaintiff, that the defendants had ample opportunity to redeem the mortgage if they so desired but did not choose to exercise their right of redemption, that the execution sale of Gudi Sirampur including the four villages in question was binding on them and that the plaintiff was entitled to khas possession of the four villages of which the defendants were in wrongful possession.
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10.In our opinion S. 66, T. P. Act, has nothing to do with the mortgagors power to lease the mortgaged property. Section 66 is a statutory enactment of the powers of the mortgagor in possession in regard to waste of mortgaged property. The mortgagor in possession is not liable for what in terms of the English Law of Real Property is known as permissive waste i.e., for omission to repair or to prevent natural deterioration. He is, however, liable for destructive waste i.e. acts which are destructive or permanently injurious to the mortgaged property if the security was insufficient or would be rendered insufficient by such acts. This section therefore has no application to the grant of a lease by the mortgagor intrue position has been stated in the following terms by Mukherjee J. in Madan Mohan Singh v. Raj Kishore,21 cal. W. N. 88 at p.true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage.While we are on this subject we would like to emphasise that it is in for the lessee if he wants to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management. Such a plea if established - and it must not be overlooked that the burden of proof in this matter is upon him - would furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position he would have certainly no defence to an action at the instance of the mortgagee.No allegation was made on behalf of the defendants that the grant of the permanent lease was a dealing with the mortgaged property in the usual course of management by the mortgagor. In the absence of any such plea, we are of the opinion that there was no answer to the plaintiffs claim and the permanent lease granted by Wazir Narayan to the defendants could not prevail against the plaintiff.15. We have therefore come to the conclusion that Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the same was not binding and operative against the plaintiff, that the defendants had ample opportunity to redeem the mortgage if they so desired but did not choose to exercise their right of redemption, that the execution sale of Gudi Sirampur including the four villages in question was binding on them and that the plaintiff was entitled to khas possession of the four villages of which the defendants were in wrongful possession.
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Municipal Board, Bareilly Vs. Bharat Oil Company And Ors | matters referred to in Section 153 and publish the same. When the proposals have been sanctioned the state Government makes the necessary rules in respect of the tax under Section 296. The rules referred to in Section 128(1) are rules thus framed by the state Government under Section 296 in respect of matters referred to in Section 153. Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipalities or may be special for any one municipality as it directs. 14. The Municipal Manual published by the government contains the general rules made by the government under the Act and general orders issued, in volume I. Volume II contains the Municipal Account Code. The general rules and orders are contained in Chapters I to XII of Part I. The Explanation in chapter I reads as under: "The Rules in this Manual, which are printed in pica type, together with their explanations, illustrations and exceptions, have the force of law, having been made by the government in exercise of the powers conferred by Section 296 of the Act, and, except where otherwise stated, are applicable to all municipalities. The notifications in which they were published are referred to on the margins of the pages"Part II contains the model rules, bye-law and regulations. Section A deals with rules with reference to Section 153 of the Act thus"The following model rules have been framed by the government for the assessment and collection of taxes other than octroi under Sections 153 and 296 of the ActIt is anticipated that they will be found generally applicable to the circumstances of the municipalities of these provinces, and it is desirable that the model from should be adhered to unless there are special reasons justifying any divergence from themIn forwarding proposals for the imposition of addition taxation, Boards are remained that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specifically referred to in the proposals submitted". Volume II contains the Municipal Account Code. Chapter X deals with octroi and provides in Rule 131 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list. In Mool Chand Ram Prasad v. Municipal Board, Banda (AIR 1926 All 517 : 24 ALJ 605) it was held that the rules contained in the code have as much force of law as the Act itself. The octroi rules contained in Chapter X of the Municipal Account code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc. The rules are general for all municipalities. The 1963 Rules are framed for the appellant Board expressly superseding the general rules are insofar as they apply to the appellant Board. By framing the 1963 Rules the government evinced the intention to cover the field which was covered by 1925 Rules insofar as the Bareilly Municipality was concerned. The subject matter dealt with in 1963 Rules is the same as that dealt with in 1925 Rules. The intention to supersede the earlier rules is clearly expressed. The rule has the force of law. Rule 131 of 1925 Rules has not longer any application in the matter of levying octroi by the appellant Board. That rule stands repealed insofar as the appellant Board is concerned. The rule cannot therefore, be read as curtailing the power under section 128(1)(viii) of the Act to impose octroi. Rules do not enlarge or restrict the authority to impose tax. Authority is conferred by the section. Rules are only regulating the exercise of that power. The imposition of the tax and the regulation of its assessment and collections are totally different matter and they are clearly distinguished. In Zaverbhai Amaidas v. state of Bombay ((1955) 1 SCR 799 : AIR 1954 SC 752 ) this court reiterated the rule of construction that if a later stature deals with the same subject matter and varies the procedure the earlier statute is rappelled by the later statute. In Municipality of Anand v. State of Bombay (AIR 1962 SC 988 : 1962 Supp 2 SCR 366 : 64 Bom LR 688) construing Section 59 of the Bombay District Municipal Act 1901 which is in pari materia with section 128 of the U.P. Municipalities Act, this court said the word, impose in Section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government. The opening words of Section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act. 15. The rule making power under Section 296 read with Section 300(2) of the Act enables the state Government to except any one municipality from the operation of the general rule by express provision in that behalf. When the identical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent. The 1963 Rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Government, in the gazette as provided under section 300 and therefore Rule 131 in the 1925 Rule ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly Municipality is concerned. | 1[ds]13. As pointed out by this Court in Municipal Board, Hapur v. Raghuvendra Kripal ((1966) 1 SCR 950 : AIR 1966 SC 693 ) taxes raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature. The tax is a valid one if it is one of the taxes the local authority can raise and the delegate imposes it in accordance with the conditions laid down by the legislature. The taxes that can be raised in exercise of delegated power are predetermined and procedure is prescribed by the Municipal Act. Thus Section 128 of the U.P. Municipalities Act confers on the municipalities in the state the power to levy taxes enumerated thereunder. The power conferred is not absolute but is subject to any general rules or special orders of the State Government in this behalf. Section 128(1) does not confer any independent rule making power. The general rules referred to in that section can only be the rules in the matter of such levy specified in Section 153 of the Act and framed in exercise of the power under Section 296 of the Act. The State Government is empowered under Section 296 to make rules consistent with the Act in respect of matters described in Section 153. Rules framed under Section 153 constitute the exclusive machinery for assessment and collection of taxes. The relevant part of Section 153 reads asRules as to assessment, collection and other matters. - The following matters shall be regulated and governed by rules except insofar as provision therefore is made by this Act, namely(a) the assessment, collection or composition of taxes, and, in the case of octroi or toll, the determination of octroi or toll limit(f) any other matter relating to taxes in respect of which this Act makes no provision or insufficient provision and provision is, in the opinion of the State Government,prescribing the procedure for the imposition of taxes by the Board, Section 131 of the Act requires the Board while framing the proposal to prepare a draft of the rules which it desires the State Government to make in respect of the matters referred to in Section 153 and publish the same. When the proposals have been sanctioned the state Government makes the necessary rules in respect of the tax under Section 296. The rules referred to in Section 128(1) are rules thus framed by the state Government under Section 296 in respect of matters referred to in Section 153. Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipalities or may be special for any one municipality as itThe Municipal Manual published by the government contains the general rules made by the government under the Act and general orders issued, in volume I. Volume II contains the Municipal Account Code. The general rules and orders are contained in Chapters I to XII of Part I. The Explanation in chapter I reads asRules in this Manual, which are printed in pica type, together with their explanations, illustrations and exceptions, have the force of law, having been made by the government in exercise of the powers conferred by Section 296 of the Act, and, except where otherwise stated, are applicable to all municipalities. The notifications in which they were published are referred to on the margins of the pages"Part II contains the model rules, bye-law and regulations. Section A deals with rules with reference to Section 153 of the Act thus"The following model rules have been framed by the government for the assessment and collection of taxes other than octroi under Sections 153 and 296 of the ActIt is anticipated that they will be found generally applicable to the circumstances of the municipalities of these provinces, and it is desirable that the model from should be adhered to unless there are special reasons justifying any divergence from themIn forwarding proposals for the imposition of addition taxation, Boards are remained that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specifically referred to in the proposalsII contains the Municipal Account Code. Chapter X deals with octroi and provides in Rule 131 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list. In Mool Chand Ram Prasad v. Municipal Board, Banda (AIR 1926 All 517 : 24 ALJ 605) it was held that the rules contained in the code have as much force of law as the Act itself. The octroi rules contained in Chapter X of the Municipal Account code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc. The rules are general for all municipalities. The 1963 Rules are framed for the appellant Board expressly superseding the general rules are insofar as they apply to the appellant Board. By framing the 1963 Rules the government evinced the intention to cover the field which was covered by 1925 Rules insofar as the Bareilly Municipality was concerned. The subject matter dealt with in 1963 Rules is the same as that dealt with in 1925 Rules. The intention to supersede the earlier rules is clearly expressed. The rule has the force of law. Rule 131 of 1925 Rules has not longer any application in the matter of levying octroi by the appellant Board. That rule stands repealed insofar as the appellant Board is concerned. The rule cannot therefore, be read as curtailing the power under section 128(1)(viii) of the Act to impose octroi. Rules do not enlarge or restrict the authority to impose tax. Authority is conferred by the section. Rules are only regulating the exercise of that power. The imposition of the tax and the regulation of its assessment and collections are totally different matter and they are clearly distinguished. In Zaverbhai Amaidas v. state of Bombay ((1955) 1 SCR 799 : AIR 1954 SC 752 ) this court reiterated the rule of construction that if a later stature deals with the same subject matter and varies the procedure the earlier statute is rappelled by the later statute. In Municipality of Anand v. State of Bombay (AIR 1962 SC 988 : 1962 Supp 2 SCR 366 : 64 Bom LR 688) construing Section 59 of the Bombay District Municipal Act 1901 which is in pari materia with section 128 of the U.P. Municipalities Act, this court said the word, impose in Section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government. The opening words of Section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of theThe rule making power under Section 296 read with Section 300(2) of the Act enables the state Government to except any one municipality from the operation of the general rule by express provision in that behalf. When the identical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent. The 1963 Rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Government, in the gazette as provided under section 300 and therefore Rule 131 in the 1925 Rule ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly Municipality is concerned | 1 | 2,892 | 1,463 | ### 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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matters referred to in Section 153 and publish the same. When the proposals have been sanctioned the state Government makes the necessary rules in respect of the tax under Section 296. The rules referred to in Section 128(1) are rules thus framed by the state Government under Section 296 in respect of matters referred to in Section 153. Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipalities or may be special for any one municipality as it directs. 14. The Municipal Manual published by the government contains the general rules made by the government under the Act and general orders issued, in volume I. Volume II contains the Municipal Account Code. The general rules and orders are contained in Chapters I to XII of Part I. The Explanation in chapter I reads as under: "The Rules in this Manual, which are printed in pica type, together with their explanations, illustrations and exceptions, have the force of law, having been made by the government in exercise of the powers conferred by Section 296 of the Act, and, except where otherwise stated, are applicable to all municipalities. The notifications in which they were published are referred to on the margins of the pages"Part II contains the model rules, bye-law and regulations. Section A deals with rules with reference to Section 153 of the Act thus"The following model rules have been framed by the government for the assessment and collection of taxes other than octroi under Sections 153 and 296 of the ActIt is anticipated that they will be found generally applicable to the circumstances of the municipalities of these provinces, and it is desirable that the model from should be adhered to unless there are special reasons justifying any divergence from themIn forwarding proposals for the imposition of addition taxation, Boards are remained that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specifically referred to in the proposals submitted". Volume II contains the Municipal Account Code. Chapter X deals with octroi and provides in Rule 131 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list. In Mool Chand Ram Prasad v. Municipal Board, Banda (AIR 1926 All 517 : 24 ALJ 605) it was held that the rules contained in the code have as much force of law as the Act itself. The octroi rules contained in Chapter X of the Municipal Account code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc. The rules are general for all municipalities. The 1963 Rules are framed for the appellant Board expressly superseding the general rules are insofar as they apply to the appellant Board. By framing the 1963 Rules the government evinced the intention to cover the field which was covered by 1925 Rules insofar as the Bareilly Municipality was concerned. The subject matter dealt with in 1963 Rules is the same as that dealt with in 1925 Rules. The intention to supersede the earlier rules is clearly expressed. The rule has the force of law. Rule 131 of 1925 Rules has not longer any application in the matter of levying octroi by the appellant Board. That rule stands repealed insofar as the appellant Board is concerned. The rule cannot therefore, be read as curtailing the power under section 128(1)(viii) of the Act to impose octroi. Rules do not enlarge or restrict the authority to impose tax. Authority is conferred by the section. Rules are only regulating the exercise of that power. The imposition of the tax and the regulation of its assessment and collections are totally different matter and they are clearly distinguished. In Zaverbhai Amaidas v. state of Bombay ((1955) 1 SCR 799 : AIR 1954 SC 752 ) this court reiterated the rule of construction that if a later stature deals with the same subject matter and varies the procedure the earlier statute is rappelled by the later statute. In Municipality of Anand v. State of Bombay (AIR 1962 SC 988 : 1962 Supp 2 SCR 366 : 64 Bom LR 688) construing Section 59 of the Bombay District Municipal Act 1901 which is in pari materia with section 128 of the U.P. Municipalities Act, this court said the word, impose in Section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government. The opening words of Section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act. 15. The rule making power under Section 296 read with Section 300(2) of the Act enables the state Government to except any one municipality from the operation of the general rule by express provision in that behalf. When the identical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent. The 1963 Rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Government, in the gazette as provided under section 300 and therefore Rule 131 in the 1925 Rule ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly Municipality is concerned.
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which it desires the State Government to make in respect of the matters referred to in Section 153 and publish the same. When the proposals have been sanctioned the state Government makes the necessary rules in respect of the tax under Section 296. The rules referred to in Section 128(1) are rules thus framed by the state Government under Section 296 in respect of matters referred to in Section 153. Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipalities or may be special for any one municipality as itThe Municipal Manual published by the government contains the general rules made by the government under the Act and general orders issued, in volume I. Volume II contains the Municipal Account Code. The general rules and orders are contained in Chapters I to XII of Part I. The Explanation in chapter I reads asRules in this Manual, which are printed in pica type, together with their explanations, illustrations and exceptions, have the force of law, having been made by the government in exercise of the powers conferred by Section 296 of the Act, and, except where otherwise stated, are applicable to all municipalities. The notifications in which they were published are referred to on the margins of the pages"Part II contains the model rules, bye-law and regulations. Section A deals with rules with reference to Section 153 of the Act thus"The following model rules have been framed by the government for the assessment and collection of taxes other than octroi under Sections 153 and 296 of the ActIt is anticipated that they will be found generally applicable to the circumstances of the municipalities of these provinces, and it is desirable that the model from should be adhered to unless there are special reasons justifying any divergence from themIn forwarding proposals for the imposition of addition taxation, Boards are remained that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specifically referred to in the proposalsII contains the Municipal Account Code. Chapter X deals with octroi and provides in Rule 131 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list. In Mool Chand Ram Prasad v. Municipal Board, Banda (AIR 1926 All 517 : 24 ALJ 605) it was held that the rules contained in the code have as much force of law as the Act itself. The octroi rules contained in Chapter X of the Municipal Account code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc. The rules are general for all municipalities. The 1963 Rules are framed for the appellant Board expressly superseding the general rules are insofar as they apply to the appellant Board. By framing the 1963 Rules the government evinced the intention to cover the field which was covered by 1925 Rules insofar as the Bareilly Municipality was concerned. The subject matter dealt with in 1963 Rules is the same as that dealt with in 1925 Rules. The intention to supersede the earlier rules is clearly expressed. The rule has the force of law. Rule 131 of 1925 Rules has not longer any application in the matter of levying octroi by the appellant Board. That rule stands repealed insofar as the appellant Board is concerned. The rule cannot therefore, be read as curtailing the power under section 128(1)(viii) of the Act to impose octroi. Rules do not enlarge or restrict the authority to impose tax. Authority is conferred by the section. Rules are only regulating the exercise of that power. The imposition of the tax and the regulation of its assessment and collections are totally different matter and they are clearly distinguished. In Zaverbhai Amaidas v. state of Bombay ((1955) 1 SCR 799 : AIR 1954 SC 752 ) this court reiterated the rule of construction that if a later stature deals with the same subject matter and varies the procedure the earlier statute is rappelled by the later statute. In Municipality of Anand v. State of Bombay (AIR 1962 SC 988 : 1962 Supp 2 SCR 366 : 64 Bom LR 688) construing Section 59 of the Bombay District Municipal Act 1901 which is in pari materia with section 128 of the U.P. Municipalities Act, this court said the word, impose in Section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government. The opening words of Section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of theThe rule making power under Section 296 read with Section 300(2) of the Act enables the state Government to except any one municipality from the operation of the general rule by express provision in that behalf. When the identical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent. The 1963 Rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Government, in the gazette as provided under section 300 and therefore Rule 131 in the 1925 Rule ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly Municipality is concerned
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Industrial Chemical Corporation Vs. Excise Commissioner, U.P., Allahabad | which the section was for the time being in force. By Section 8 the Central Government was authoirsed by notification to direct that any power conferred by the Act, subject to such conditions, if any, as may be specified in the direction, be exercisable by such officer or authority subordinate to the Central Government or such. Provincial Government or such other officer or authority subordinate to a Provincial Government as may be specified in the direction. By Section 10 power was conferred upon the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular for certain specified purposes including the power to licence manufacture of power alcohol, fixing the price at which the power alcohol may be sold, providing for imposing and collecting a duty or power alcohol and prescribing conditions in respect of transport and storage of power alcohol, and for other matters which may be prescribed under the Act. By Clause 10 of the Rules framed under the Power Alcohol Act, it was provided that subject to the provisions of the Act and the rules, the provisions of Chapter IX of the Excise Manual, Uttar Pradesh, Vol. I, shall apply to the manufacture of power alcohol and by-products, storage at distilleries, denaturation, issues, wastages and transport of power alcohol. We are not concerned in this case with the proviso which deals with the modifications in the rule applicable to the State of Bombay. By Section 33 it was provided :-"No person shall be permitted to sell or store for sale power alcohol at any premises which are not covered both by the licence required under the provisions of the Petroleum Act, 1934, and by a licence under these rules in Form P.A. 15.Provided that power alcohol may be issued in limited quantities to a consumer direct from a distiller with the general or special permission of the Central Government or the Power Alcohol Authority of the State concerned on production or a treasury challan in support of pre-payment of Central Excise Duty and the sales tax (if imposed by the Government of the State concerned) or after adjustment of the amount due against on advance deposit by the distillery in any treasury approved for the purpose."It is clear from the provisions of the Indian Power Alcohol Act and the Rules framed under the Act that manufacture, production and disposal of power alcohol are controlled and regulated and that power alcohol may not be issued, stored, denatured or transported otherwise than as provided in Chapter IX of the Excise Manual, U.P. Vol. I, but limited quantities may be issued to consumers direct from a distillery under the general or special permission of the Central Government or the Power Alcohol Authority. Under Rule 2(q) of the Rules framed under the Indian Power Alcohol Act, the Excise Commissioner, U.P. has been appointed as the Power Alcohol Authority.9. The licence in Form L-6 under the Central Excises and Salt Act, 1944, issued to the petitioners merely authorised them to obtain without payment of duty power alcohol for industrial purposes. But the issue of such a licence did not obviate the necessity of complying with the relevant provisions made under the Indian Power Alcohol Act, for the licence under the Central Excise Rules authorises the use of power alcohol obtained without payment of duty, but for obtaining power alcohol, the provisions of the Power Alcohol Act and the Rules have to be complied with.10. The statutory provisions and the Rules issued thereunder which we have set out in detail clearly prescribe that power alcohol may be issued to a consumer direct from a distillery as provided by the proviso to Rule 33 of the Power Alcohol Rules, and to the issue of power alcohol from a distillery in the State of U.P., Chapter IX of the Excise Manual which contains the relevant rules framed under the U.P. Excise Act applies.11. The right to obtain power alcohol directly from a distillery was therefore subject to the provisions of the Indian Power Alcohol Act, 1948, the Rules framed under that Act which incorporated therein the U.P. Excise Manual Chapter IX. The contention of the petitioners that since they obtained a licence in Form L-6 under the Central Excises Act they were entitled to obtain the quantity of power alcohol required for the purpose of their business without any restriction as to the quantity or the conditions as to obtaining permits is therefore wholly without substance. The Excise authorities required the petitioners to obtain permit after "satisfying all other necessary procedural details prescribed." In so directing, the Excise authorities were acting according to law. The contention raised by the petitioners that the provisions of Chapter IX of the U.P. Excise Manual, Vol. I, apply to power alcohol which is intended to be used as fuel and not otherwise, has, in our judgment, no substance. Rules 10 and 33 proviso of the Power Alcohol Rules apply to power alcohol used for all purposes and are not restricted to its use as fuel.12. The validity of Chapter IX of the U.P. Excise Manual which has been incorporated by Rule 10 in the Rules framed under the Indian Power Alcohol Act, has not been challenged before us. It is true that the petitioners had, under Article 19(1)(g) of the Constitution a fundamental right to carry on business of manufacture of Thinners. But that fundamental right is subject to restrictions prescribed under the Indian Power Alcohol Act and the Rules framed thereunder. The reasonableness of those restrictions has not been challenged before us. The only argument advanced by the petitioners in support of the petition is that the Central Government having granted a licence in Form L-6 no further conditions could be imposed restricting the right of the petitioners to obtain power alcohol required by them for the purpose of their business. That contention on the Rules framed under the Power Alcohol Act is wholly unwarranted, and must be rejected. | 0[ds]This contention is, for reasons to be presently set out, wholly without substance. The relevant statutory provisions and rules framed thereunder which have a bearing on the plea raised by the petitioners may be briefly reviewed.It is clear from the provisions of the Indian Power Alcohol Act and the Rules framed under the Act that manufacture, production and disposal of power alcohol are controlled and regulated and that power alcohol may not be issued, stored, denatured or transported otherwise than as provided in Chapter IX of the Excise Manual, U.P. Vol. I, but limited quantities may be issued to consumers direct from a distillery under the general or special permission of the Central Government or the Power Alcohol Authority. Under Rule 2(q) of the Rules framed under the Indian Power Alcohol Act, the Excise Commissioner, U.P. has been appointed as the Power Alcohol Authority.9. The licence in Formunder the Central Excises and Salt Act, 1944, issued to the petitioners merely authorised them to obtain without payment of duty power alcohol for industrial purposes. But the issue of such a licence did not obviate the necessity of complying with the relevant provisions made under the Indian Power Alcohol Act, for the licence under the Central Excise Rules authorises the use of power alcohol obtained without payment of duty, but for obtaining power alcohol, the provisions of the Power Alcohol Act and the Rules have to be complied with.10. The statutory provisions and the Rules issued thereunder which we have set out in detail clearly prescribe that power alcohol may be issued to a consumer direct from a distillery as provided by the proviso to Rule 33 of the Power Alcohol Rules, and to the issue of power alcohol from a distillery in the State of U.P., Chapter IX of the Excise Manual which contains the relevant rules framed under the U.P. Excise Act applies.11. The right to obtain power alcohol directly from a distillery was therefore subject to the provisions of the Indian Power Alcohol Act, 1948, the Rules framed under that Act which incorporated therein the U.P. Excise Manual Chapter IX. The contention of the petitioners that since they obtained a licence in Formunder the Central Excises Act they were entitled to obtain the quantity of power alcohol required for the purpose of their business without any restriction as to the quantity or the conditions as to obtaining permits is therefore wholly without substance. The Excise authorities required the petitioners to obtain permit after "satisfying all other necessary procedural details prescribed." In so directing, the Excise authorities were acting according to law. The contention raised by the petitioners that the provisions of Chapter IX of the U.P. Excise Manual, Vol. I, apply to power alcohol which is intended to be used as fuel and not otherwise, has, in our judgment, no substance. Rules 10 and 33 proviso of the Power Alcohol Rules apply to power alcohol used for all purposes and are not restricted to its use as fuel.12. The validity of Chapter IX of the U.P. Excise Manual which has been incorporated by Rule 10 in the Rules framed under the Indian Power Alcohol Act, has not been challenged before us. It is true that the petitioners had, under Article 19(1)(g) of the Constitution a fundamental right to carry on business of manufacture of Thinners. But that fundamental right is subject to restrictions prescribed under the Indian Power Alcohol Act and the Rules framed thereunder. The reasonableness of those restrictions has not been challenged before us. The only argument advanced by the petitioners in support of the petition is that the Central Government having granted a licence in Formno further conditions could be imposed restricting the right of the petitioners to obtain power alcohol required by them for the purpose of their business. That contention on the Rules framed under the Power Alcohol Act is wholly unwarranted, and must be rejected. | 0 | 2,638 | 720 | ### Instruction:
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which the section was for the time being in force. By Section 8 the Central Government was authoirsed by notification to direct that any power conferred by the Act, subject to such conditions, if any, as may be specified in the direction, be exercisable by such officer or authority subordinate to the Central Government or such. Provincial Government or such other officer or authority subordinate to a Provincial Government as may be specified in the direction. By Section 10 power was conferred upon the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular for certain specified purposes including the power to licence manufacture of power alcohol, fixing the price at which the power alcohol may be sold, providing for imposing and collecting a duty or power alcohol and prescribing conditions in respect of transport and storage of power alcohol, and for other matters which may be prescribed under the Act. By Clause 10 of the Rules framed under the Power Alcohol Act, it was provided that subject to the provisions of the Act and the rules, the provisions of Chapter IX of the Excise Manual, Uttar Pradesh, Vol. I, shall apply to the manufacture of power alcohol and by-products, storage at distilleries, denaturation, issues, wastages and transport of power alcohol. We are not concerned in this case with the proviso which deals with the modifications in the rule applicable to the State of Bombay. By Section 33 it was provided :-"No person shall be permitted to sell or store for sale power alcohol at any premises which are not covered both by the licence required under the provisions of the Petroleum Act, 1934, and by a licence under these rules in Form P.A. 15.Provided that power alcohol may be issued in limited quantities to a consumer direct from a distiller with the general or special permission of the Central Government or the Power Alcohol Authority of the State concerned on production or a treasury challan in support of pre-payment of Central Excise Duty and the sales tax (if imposed by the Government of the State concerned) or after adjustment of the amount due against on advance deposit by the distillery in any treasury approved for the purpose."It is clear from the provisions of the Indian Power Alcohol Act and the Rules framed under the Act that manufacture, production and disposal of power alcohol are controlled and regulated and that power alcohol may not be issued, stored, denatured or transported otherwise than as provided in Chapter IX of the Excise Manual, U.P. Vol. I, but limited quantities may be issued to consumers direct from a distillery under the general or special permission of the Central Government or the Power Alcohol Authority. Under Rule 2(q) of the Rules framed under the Indian Power Alcohol Act, the Excise Commissioner, U.P. has been appointed as the Power Alcohol Authority.9. The licence in Form L-6 under the Central Excises and Salt Act, 1944, issued to the petitioners merely authorised them to obtain without payment of duty power alcohol for industrial purposes. But the issue of such a licence did not obviate the necessity of complying with the relevant provisions made under the Indian Power Alcohol Act, for the licence under the Central Excise Rules authorises the use of power alcohol obtained without payment of duty, but for obtaining power alcohol, the provisions of the Power Alcohol Act and the Rules have to be complied with.10. The statutory provisions and the Rules issued thereunder which we have set out in detail clearly prescribe that power alcohol may be issued to a consumer direct from a distillery as provided by the proviso to Rule 33 of the Power Alcohol Rules, and to the issue of power alcohol from a distillery in the State of U.P., Chapter IX of the Excise Manual which contains the relevant rules framed under the U.P. Excise Act applies.11. The right to obtain power alcohol directly from a distillery was therefore subject to the provisions of the Indian Power Alcohol Act, 1948, the Rules framed under that Act which incorporated therein the U.P. Excise Manual Chapter IX. The contention of the petitioners that since they obtained a licence in Form L-6 under the Central Excises Act they were entitled to obtain the quantity of power alcohol required for the purpose of their business without any restriction as to the quantity or the conditions as to obtaining permits is therefore wholly without substance. The Excise authorities required the petitioners to obtain permit after "satisfying all other necessary procedural details prescribed." In so directing, the Excise authorities were acting according to law. The contention raised by the petitioners that the provisions of Chapter IX of the U.P. Excise Manual, Vol. I, apply to power alcohol which is intended to be used as fuel and not otherwise, has, in our judgment, no substance. Rules 10 and 33 proviso of the Power Alcohol Rules apply to power alcohol used for all purposes and are not restricted to its use as fuel.12. The validity of Chapter IX of the U.P. Excise Manual which has been incorporated by Rule 10 in the Rules framed under the Indian Power Alcohol Act, has not been challenged before us. It is true that the petitioners had, under Article 19(1)(g) of the Constitution a fundamental right to carry on business of manufacture of Thinners. But that fundamental right is subject to restrictions prescribed under the Indian Power Alcohol Act and the Rules framed thereunder. The reasonableness of those restrictions has not been challenged before us. The only argument advanced by the petitioners in support of the petition is that the Central Government having granted a licence in Form L-6 no further conditions could be imposed restricting the right of the petitioners to obtain power alcohol required by them for the purpose of their business. That contention on the Rules framed under the Power Alcohol Act is wholly unwarranted, and must be rejected.
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This contention is, for reasons to be presently set out, wholly without substance. The relevant statutory provisions and rules framed thereunder which have a bearing on the plea raised by the petitioners may be briefly reviewed.It is clear from the provisions of the Indian Power Alcohol Act and the Rules framed under the Act that manufacture, production and disposal of power alcohol are controlled and regulated and that power alcohol may not be issued, stored, denatured or transported otherwise than as provided in Chapter IX of the Excise Manual, U.P. Vol. I, but limited quantities may be issued to consumers direct from a distillery under the general or special permission of the Central Government or the Power Alcohol Authority. Under Rule 2(q) of the Rules framed under the Indian Power Alcohol Act, the Excise Commissioner, U.P. has been appointed as the Power Alcohol Authority.9. The licence in Formunder the Central Excises and Salt Act, 1944, issued to the petitioners merely authorised them to obtain without payment of duty power alcohol for industrial purposes. But the issue of such a licence did not obviate the necessity of complying with the relevant provisions made under the Indian Power Alcohol Act, for the licence under the Central Excise Rules authorises the use of power alcohol obtained without payment of duty, but for obtaining power alcohol, the provisions of the Power Alcohol Act and the Rules have to be complied with.10. The statutory provisions and the Rules issued thereunder which we have set out in detail clearly prescribe that power alcohol may be issued to a consumer direct from a distillery as provided by the proviso to Rule 33 of the Power Alcohol Rules, and to the issue of power alcohol from a distillery in the State of U.P., Chapter IX of the Excise Manual which contains the relevant rules framed under the U.P. Excise Act applies.11. The right to obtain power alcohol directly from a distillery was therefore subject to the provisions of the Indian Power Alcohol Act, 1948, the Rules framed under that Act which incorporated therein the U.P. Excise Manual Chapter IX. The contention of the petitioners that since they obtained a licence in Formunder the Central Excises Act they were entitled to obtain the quantity of power alcohol required for the purpose of their business without any restriction as to the quantity or the conditions as to obtaining permits is therefore wholly without substance. The Excise authorities required the petitioners to obtain permit after "satisfying all other necessary procedural details prescribed." In so directing, the Excise authorities were acting according to law. The contention raised by the petitioners that the provisions of Chapter IX of the U.P. Excise Manual, Vol. I, apply to power alcohol which is intended to be used as fuel and not otherwise, has, in our judgment, no substance. Rules 10 and 33 proviso of the Power Alcohol Rules apply to power alcohol used for all purposes and are not restricted to its use as fuel.12. The validity of Chapter IX of the U.P. Excise Manual which has been incorporated by Rule 10 in the Rules framed under the Indian Power Alcohol Act, has not been challenged before us. It is true that the petitioners had, under Article 19(1)(g) of the Constitution a fundamental right to carry on business of manufacture of Thinners. But that fundamental right is subject to restrictions prescribed under the Indian Power Alcohol Act and the Rules framed thereunder. The reasonableness of those restrictions has not been challenged before us. The only argument advanced by the petitioners in support of the petition is that the Central Government having granted a licence in Formno further conditions could be imposed restricting the right of the petitioners to obtain power alcohol required by them for the purpose of their business. That contention on the Rules framed under the Power Alcohol Act is wholly unwarranted, and must be rejected.
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WAPCOS LTD Vs. SALMA DAM JOINT VENTURE | arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us. 33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition. 34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent. We may usefully rely on the underlying principle expounded by this Court in Damodar Valley Corporation vs. K. K. Kar (1974) 2 SCR 240 @ 243-244 , wherein the Court observed as follows:- …..As the contract is an outcome of the agreement between the parties it is equally open to the parties thereto to agree, to bring it to an end or to treat it as if it never existed. It may also be open to the parties to terminate the previous contract and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist. In all these cases, since the entire contract is put an end to, the arbitration clause, which is a part of it, also perishes along with it. Section 62 of the Contract Act incorporates this principle when it provides that if the parties to a contract agree to substitute a new contract or to rescind or alter it, the original contract need not be performed. Where, therefore, the dispute between the parties is that the contract itself does not subsist either as a result of its being substituted by a new contract or by rescission or alteration, that dispute cannot be referred to the arbitration as the arbitration clause itself would perish if the averment is found to be valid. As the very jurisdiction of the arbitrator is dependent upon the existence of the arbitration clause under which he is appointed, the parties have no right to invoke a clause which perishes with the contract. In a subsequent decision in National Insurance Company Limited vs. Boghara Polyfab Private Limited (2009) 1 SCC 267 , in paragraph 52 this Court held as follows: 52. Some illustrations (not exhaustive) as to when claims are arbitrable and when they are not, when discharge of contract by accord and satisfaction are disputed, to round up the discussion on this subject are: (i) …. …. …. (ii) A claimant makes several claims. The admitted or undisputed claims are paid. Thereafter negotiations are held for settlement of the disputed claims resulting in an agreement in writing settling all the pending claims and disputes. On such settlement, the amount agreed is paid and the contractor also issues a discharge voucher/no- claim certificate/full and final receipt. After the contract is discharged by such accord and satisfaction, neither the contract nor any dispute survives for consideration. There cannot be any reference of any dispute to arbitration thereafter. (iii) …. …. …. (iv) …. …. …. (v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration. Further, in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 , this Court observed as follows:- 3......Even otherwise we feel that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicably settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause. We are, therefore, of the opinion that the High Court was wrong in the view that it took. 35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed. | 0[ds]Going by the Contract Agreement read with relevant clauses of CoPA and FIDIC, it is obvious that the parties had agreed for resolution of all their differences or disputes arising from the Contract Agreement by process of settlement of disputes and arbitration23. It is pertinent to note that the execution of stated AoA has not been disputed by SDJV or for that matter by SSPPL. More so, these entities have not even challenged the implementation of AoA. On the other hand, it has come on record that all concerned gave effect to the terms set out in AoA by offering revised rates to SDJV in conformity with the agreed rates referred to in AoA and which payment was received and availed of by SDJV/SSPPL without any demur. We may hasten to add that even the subject Arbitration Petition does not question the execution of AoA or the applicability thereof. Indeed, the asseveration in the Arbitration Petition is that the claim set up by SDJV is in reference to items and bills raised subsequent to the execution of AoA26. Despite such peremptory agreement and declaration by the parties, SDJV proceeded on an erroneous basis that the arbitration agreement in Contract Agreement still subsists and can be enforced by it. As aforesaid, neither SDJV nor SSPPL have disputed the execution of AoA nor it is even remotely suggested in the Arbitration Petition that the AoA was executed by them under duress or coercion. From the indisputable circumstances, it becomes amply clear that the stated terms and conditions set out in the AoA were agreed upon by all concerned primarily due to revision of cost of the project upto Rs. 872.67 crores which is 3.44 times the original project cost, (i.e. Rs. 253.84 crores) as the same was subject to clauses 1.2 and 1.3 of Section-01 See – Clause 1.0 of Section-01 of AoA (in paragraph 22 above) . Notably, this AoA was executed at a stage when substantial part of the works (around 97%) had already been completed. In our opinion, the terms and conditions specified in AoA leave no manner of doubt that the arbitration agreement has been done away with – as is manifest from the unambiguous declaration that balance pending claims of Contractor stand buried and that there will be no arbitration for the settlement of claimsThat may be so, however, in our view, it will be of no avail. We will deal with this aspect a little later. Suffice it to observe that the terms and conditions of AoA make it amply clear that the arbitration agreement stands overridden in view of the express declaration in AoA in that regard referred to earlier28. As noticed earlier, AoA was executed on 09.06.2015 by which date, substantial part of the works (around 97 per cent) of the Dam and Spillway had been completed. The water filling in dam commenced on 26.07.2015 by closing diversion tunnel gate. That presupposes that the Dam and Spillway work was fully completed before that date. It is also not disputed that the project was inaugurated by the Prime Minister of India and the President of Afghanistan on 04.06.2016. The terms agreed upon between the parties and as recorded in AoA dated 09.06.2015 was the outcome of steep revision of rates. These circumstances are germane whilst answering the question under consideration. We have no manner of doubt that the purport of the terms and conditions incorporated in the AoA dated 09.06.2015 are unambiguous expression of intent to supersede the arbitration agreement incorporated in Contract Agreement dated 09.03.2006 and to resolve all the contentious issues regarding the claims of SDJV, in the manner specified therein30. As regards the first reason weighed with the High Court that the Technical Committee entertained the five appeals filed on behalf of the SDJV, that in our view cannot undo the effect of terms and conditions of AoA which had annulled the arbitration clause in the Contract Agreement. There are at least two other tangible reasons to overturn the stated opinion of the High Court. First, the Technical Committee was, as a matter of fact, constituted under clause 2.1 of Section – 02 of AoA by the CMD of WAPCOSL, as is evident from the communication dated 21.10.2015 sent by WAPCOSL to SDJV. That fact has been restated in the subsequent correspondence. The Technical Committee was, therefore, not constituted in terms of Clause 20.1 of CoPA as has been erroneously assumed by the High Court. Second, the fact that the Technical Committee processed the appeals instituted by SDJV does not mean that WAPCOSL had waived the terms and conditions of AoA, in particular clauses 1.2 and 1.3 of Section-01 thereof. No averment is found in the Arbitration Petition to even remotely suggest that it was a case of waiver express or tacit, by WAPCOSL qua the stipulation specified in clauses 1.2 and 1.3 of Section-01 of AoA. Hence, this reason weighed with the High Court is manifestly wrong and cannot stand the test of judicial scrutiny31. The second reason weighed with the High Court is again founded on incorrect assumption about the date of AoA. The High Court in paragraph 10.7 proceeds on the basis that AoA was executed as back as on 09.06.2005 and having noted that date, the High Court then observed that the project was inaugurated only in 2016. On this erroneous assumption, the High Court rejected the claim of the appellant(s) herein. As a matter of fact, the AoA was executed on 09.06.2015, at which point of time, 97 per cent of the project was completed and the same was rolled out by filling of the Dam from 26.07.2015 in less than one month, by closing diversion tunnel gate. Not only that, the project was dedicated to the people of Afghanistan soon thereafter on 04.06.2016. Thus understood, it becomes clear that the parties had agreed to give quietus to all the claims and adopt revised rates recommended by High Power Committee, as recorded in AoA executed on 09.06.2015. Suffice it to note that the basis for rejecting the argument of the appellant(s) is founded on erroneous assumption that AoA was executed on 09.06.2005. That is an error apparent on the face of the record32. The third reason weighed with the High Court is that clause 20.6 of CoPA, providing for resolution of disputes by arbitration has not been modified by AoA. Indeed, clause 4 of the Contract Agreement makes reference to clause 20 of CoPA. However, on a fair reading of clause 4 of the Contract Agreement and in particular 4.1 as reproduced hitherto, it would be crystal clear that the substance of the provision is to provide for process of settlement of disputes and arbitration. Reference to clause 20 of CoPA is only to indicate that the procedure specified therein may have to be followed whilst taking recourse to that process. However, as the substantive provision regarding remedy of arbitration itself has been done away with in terms of clauses 1.2 and 1.3 of Section-01 of AoA, there was no need to modify clause 20 in CoPA dealing with machinery provision. Thus, the remedy of arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed. | 0 | 6,603 | 1,562 | ### Instruction:
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arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us. 33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition. 34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent. We may usefully rely on the underlying principle expounded by this Court in Damodar Valley Corporation vs. K. K. Kar (1974) 2 SCR 240 @ 243-244 , wherein the Court observed as follows:- …..As the contract is an outcome of the agreement between the parties it is equally open to the parties thereto to agree, to bring it to an end or to treat it as if it never existed. It may also be open to the parties to terminate the previous contract and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist. In all these cases, since the entire contract is put an end to, the arbitration clause, which is a part of it, also perishes along with it. Section 62 of the Contract Act incorporates this principle when it provides that if the parties to a contract agree to substitute a new contract or to rescind or alter it, the original contract need not be performed. Where, therefore, the dispute between the parties is that the contract itself does not subsist either as a result of its being substituted by a new contract or by rescission or alteration, that dispute cannot be referred to the arbitration as the arbitration clause itself would perish if the averment is found to be valid. As the very jurisdiction of the arbitrator is dependent upon the existence of the arbitration clause under which he is appointed, the parties have no right to invoke a clause which perishes with the contract. In a subsequent decision in National Insurance Company Limited vs. Boghara Polyfab Private Limited (2009) 1 SCC 267 , in paragraph 52 this Court held as follows: 52. Some illustrations (not exhaustive) as to when claims are arbitrable and when they are not, when discharge of contract by accord and satisfaction are disputed, to round up the discussion on this subject are: (i) …. …. …. (ii) A claimant makes several claims. The admitted or undisputed claims are paid. Thereafter negotiations are held for settlement of the disputed claims resulting in an agreement in writing settling all the pending claims and disputes. On such settlement, the amount agreed is paid and the contractor also issues a discharge voucher/no- claim certificate/full and final receipt. After the contract is discharged by such accord and satisfaction, neither the contract nor any dispute survives for consideration. There cannot be any reference of any dispute to arbitration thereafter. (iii) …. …. …. (iv) …. …. …. (v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration. Further, in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 , this Court observed as follows:- 3......Even otherwise we feel that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicably settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause. We are, therefore, of the opinion that the High Court was wrong in the view that it took. 35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed.
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express declaration in AoA in that regard referred to earlier28. As noticed earlier, AoA was executed on 09.06.2015 by which date, substantial part of the works (around 97 per cent) of the Dam and Spillway had been completed. The water filling in dam commenced on 26.07.2015 by closing diversion tunnel gate. That presupposes that the Dam and Spillway work was fully completed before that date. It is also not disputed that the project was inaugurated by the Prime Minister of India and the President of Afghanistan on 04.06.2016. The terms agreed upon between the parties and as recorded in AoA dated 09.06.2015 was the outcome of steep revision of rates. These circumstances are germane whilst answering the question under consideration. We have no manner of doubt that the purport of the terms and conditions incorporated in the AoA dated 09.06.2015 are unambiguous expression of intent to supersede the arbitration agreement incorporated in Contract Agreement dated 09.03.2006 and to resolve all the contentious issues regarding the claims of SDJV, in the manner specified therein30. As regards the first reason weighed with the High Court that the Technical Committee entertained the five appeals filed on behalf of the SDJV, that in our view cannot undo the effect of terms and conditions of AoA which had annulled the arbitration clause in the Contract Agreement. There are at least two other tangible reasons to overturn the stated opinion of the High Court. First, the Technical Committee was, as a matter of fact, constituted under clause 2.1 of Section – 02 of AoA by the CMD of WAPCOSL, as is evident from the communication dated 21.10.2015 sent by WAPCOSL to SDJV. That fact has been restated in the subsequent correspondence. The Technical Committee was, therefore, not constituted in terms of Clause 20.1 of CoPA as has been erroneously assumed by the High Court. Second, the fact that the Technical Committee processed the appeals instituted by SDJV does not mean that WAPCOSL had waived the terms and conditions of AoA, in particular clauses 1.2 and 1.3 of Section-01 thereof. No averment is found in the Arbitration Petition to even remotely suggest that it was a case of waiver express or tacit, by WAPCOSL qua the stipulation specified in clauses 1.2 and 1.3 of Section-01 of AoA. Hence, this reason weighed with the High Court is manifestly wrong and cannot stand the test of judicial scrutiny31. The second reason weighed with the High Court is again founded on incorrect assumption about the date of AoA. The High Court in paragraph 10.7 proceeds on the basis that AoA was executed as back as on 09.06.2005 and having noted that date, the High Court then observed that the project was inaugurated only in 2016. On this erroneous assumption, the High Court rejected the claim of the appellant(s) herein. As a matter of fact, the AoA was executed on 09.06.2015, at which point of time, 97 per cent of the project was completed and the same was rolled out by filling of the Dam from 26.07.2015 in less than one month, by closing diversion tunnel gate. Not only that, the project was dedicated to the people of Afghanistan soon thereafter on 04.06.2016. Thus understood, it becomes clear that the parties had agreed to give quietus to all the claims and adopt revised rates recommended by High Power Committee, as recorded in AoA executed on 09.06.2015. Suffice it to note that the basis for rejecting the argument of the appellant(s) is founded on erroneous assumption that AoA was executed on 09.06.2005. That is an error apparent on the face of the record32. The third reason weighed with the High Court is that clause 20.6 of CoPA, providing for resolution of disputes by arbitration has not been modified by AoA. Indeed, clause 4 of the Contract Agreement makes reference to clause 20 of CoPA. However, on a fair reading of clause 4 of the Contract Agreement and in particular 4.1 as reproduced hitherto, it would be crystal clear that the substance of the provision is to provide for process of settlement of disputes and arbitration. Reference to clause 20 of CoPA is only to indicate that the procedure specified therein may have to be followed whilst taking recourse to that process. However, as the substantive provision regarding remedy of arbitration itself has been done away with in terms of clauses 1.2 and 1.3 of Section-01 of AoA, there was no need to modify clause 20 in CoPA dealing with machinery provision. Thus, the remedy of arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed.
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Bhikaji Keshao Joshi And Another Vs. Brijlal Nandlal Biyani And Others | nominations papers but that they were summarily overruled by the Returning Officer without any enquiry and that accordingly the objections to the disqualification have been raised in the application. The objections are as follows :"6. The material facts in support of the grounds are as follows:(a) The election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on 31-12-195l. Nominations were to be filed on or before 15-11-1951, and scrutiny of nomination was due on 17-ll-1951. At this time of scrutiny objection was taken to the nomination paper of respondent 1 on several grounds but the material grounds were that respondent 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, S. 7(d), Representation of the People Act, 1951. (Act 43 of 1951).That respondent 1 is disqualified to fill the seat under the Act, because he is the Managing Agent or Managing Director of Rajasthan Printing, and Litho Works - private limited company under the Indian Companies Act. He has, as a shareholder and director, interest, in contracts for supply of goods, viz., stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh.He has also interest in contracts for the execution of works or performance of services, such as printing, etc., undertaken by the State Government of Madhya Pradesh. Respondent 1 gets a share by way of commission on sales effected by the Limited Company. He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.(b) Respondent 1 is a partner in the firm Berar General Agency. The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same. Respondent 1, therefore, has interest by himself in the said contract for the performance of services undertaken by the Government.(c) Respondent 1 is the proprietor of the monthly Journal "Prawaha" and a by weekly paper "Matru-bhumi These publications print Government advertisements on contract basis. Respondent 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government, Madhya Pradesh. The income derived from these contracts by respondent 1 are noted in the private accounts of respondent 1 and their details are shown in the profit and loss statements filed with income-tax return of respondent 1 for the relevant year and current year.The sales and other details of the Matrubhumi" concern are noted in the private accounts of respondent 1.These objections were summarily overruled by the Returning Officer, without any inquiry or any reason."These allegations, if made out with such further details as may be necessary, might well prove serious and bring about the setting aside of the election of the returned candidate. Respondent 1 in answer to these allegations states as follows:"It is denied that there was any improper acceptance of the nomination paper of respondent 1 and in particular it is denied that any of the allegations made in paras 6 (a), (b) and (c) of the petition constitute in law a disqualification of S. 7, Representation of the People Act. Without prejudice to this it is submitted that respondent 1 was not suffering from any of these dis-qualifications in fact on the date of the submission of the nomination paper."Having regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of item 1, i.e., as follows :" That in the month of December, 1951, respondent 1 had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book Granth Saheb on the 7th day of the death of daughter of one Sardar Suratsingh. At the meeting respondent 1 canvassed for votes for himself and paid Rs. 20l, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election. Respondent 1 was guilty of bribery within the meaning of that term in Section 123, Representation of the People Act" The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paras 6(a), (b) and (c) of the application for setting aside the election, and (2) the allegations in para 1 of item 1, in Sch. A attached to the application as set out above."10. The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date. | 1[ds]Learned counsel for the appellants attempted to attack the validity of the decision of the Tribunal now under appeal on the same ground. But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened. On the other side, the learned Attorney-General for respondent 1 attempted to reopen before us the question as to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal.The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof.We were not prepared, however, to permit this finding of fact to be reopened in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.was open to a Tribunal to reconsider the matter by virtue of S. 90(4) of the Act, is now covered by the decision of this Court reported in - Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411 (A). It was therein held that it was not open to the Tribunal to reconsider the matter in such a case.The conclusion of the tribunal, therefore, on this point cannot belearned Attorney-General attempted to argue that the decision of this Court referred to above was obiter as regards the legal point and required furtherconsideration.But we were not prepared to permits that question to reopened. We were also not satisfied that there was any adequate reason for the Tribunal to interfere with the view taken by the Election Commission condoning the delay of one day on the explanation furnished to it. This explanation has not been found, even by the Tribunal , to bewe were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase "at the election" but on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose, if any of the requirement under S. 82 as to the joinder of parties other than the returned candidate.We are, however, relieved from this since it has been decided in AIR 1954 SC 210 (E) that evenif any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.In view of this ruling the decision of the Tribunal on this point also cannot beis to be noticed that a verified pleading is different from an affidavit which, by virtue of O. 19, R. 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).But there is not - and in the nature of things here cannot be - any such limitation for pleadings. Hence it became necessary in the verification of a pleading to demarcate clearly between the two.The allegations in the petition in this case purport to he based only on information. Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.The verifications are accordingly defective only as, regards the requirement of the datesthere may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification. In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earliercan be no doubt that almost all the instances hereinabove set out are extremely vague and lack sufficientview of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney-General that the petitioners, for some reasons best known to themselves, have come forward with a some what irresponsible petition and thatwhile the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishing of betterundoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient dismissal, the petitioners are not absolved from their duty to comply, of their own accord, with the requirements of S. 83(2) of the Act and to remove the defects when opportunity was available.They cannot take shelter behind the fact that neither the Tribunal nor respondent 1 has, in terms , called upon them to furnish better particulars.The position, therefore, on the question of compliance or otherwise of the requirements of S. 83 of the Act is that (1) the verifications in the petition and schedule are defective inasmuch as the dates thereof are not specified, and (2) the schedule of particulars consists of a number of items of which only one at best could have been taken up for inquiry by the Tribunal. But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availedthere is considerable force in this argument, we think that in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application. It should have exercised its powers and called for better particulars, on non-compliance therewith, it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.We are, therefore, of the opinion that, the order of the tribunal dismissing the petition outright was clearly erroneous. Notwithstanding this opinion we would, in the normal course, not have felt called upon to interfere in this case under Art. 136 after this lapse of time and at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of itemThe Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date. | 1 | 7,367 | 1,486 | ### Instruction:
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nominations papers but that they were summarily overruled by the Returning Officer without any enquiry and that accordingly the objections to the disqualification have been raised in the application. The objections are as follows :"6. The material facts in support of the grounds are as follows:(a) The election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on 31-12-195l. Nominations were to be filed on or before 15-11-1951, and scrutiny of nomination was due on 17-ll-1951. At this time of scrutiny objection was taken to the nomination paper of respondent 1 on several grounds but the material grounds were that respondent 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, S. 7(d), Representation of the People Act, 1951. (Act 43 of 1951).That respondent 1 is disqualified to fill the seat under the Act, because he is the Managing Agent or Managing Director of Rajasthan Printing, and Litho Works - private limited company under the Indian Companies Act. He has, as a shareholder and director, interest, in contracts for supply of goods, viz., stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh.He has also interest in contracts for the execution of works or performance of services, such as printing, etc., undertaken by the State Government of Madhya Pradesh. Respondent 1 gets a share by way of commission on sales effected by the Limited Company. He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.(b) Respondent 1 is a partner in the firm Berar General Agency. The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same. Respondent 1, therefore, has interest by himself in the said contract for the performance of services undertaken by the Government.(c) Respondent 1 is the proprietor of the monthly Journal "Prawaha" and a by weekly paper "Matru-bhumi These publications print Government advertisements on contract basis. Respondent 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government, Madhya Pradesh. The income derived from these contracts by respondent 1 are noted in the private accounts of respondent 1 and their details are shown in the profit and loss statements filed with income-tax return of respondent 1 for the relevant year and current year.The sales and other details of the Matrubhumi" concern are noted in the private accounts of respondent 1.These objections were summarily overruled by the Returning Officer, without any inquiry or any reason."These allegations, if made out with such further details as may be necessary, might well prove serious and bring about the setting aside of the election of the returned candidate. Respondent 1 in answer to these allegations states as follows:"It is denied that there was any improper acceptance of the nomination paper of respondent 1 and in particular it is denied that any of the allegations made in paras 6 (a), (b) and (c) of the petition constitute in law a disqualification of S. 7, Representation of the People Act. Without prejudice to this it is submitted that respondent 1 was not suffering from any of these dis-qualifications in fact on the date of the submission of the nomination paper."Having regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of item 1, i.e., as follows :" That in the month of December, 1951, respondent 1 had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book Granth Saheb on the 7th day of the death of daughter of one Sardar Suratsingh. At the meeting respondent 1 canvassed for votes for himself and paid Rs. 20l, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election. Respondent 1 was guilty of bribery within the meaning of that term in Section 123, Representation of the People Act" The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paras 6(a), (b) and (c) of the application for setting aside the election, and (2) the allegations in para 1 of item 1, in Sch. A attached to the application as set out above."10. The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.
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necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.In view of this ruling the decision of the Tribunal on this point also cannot beis to be noticed that a verified pleading is different from an affidavit which, by virtue of O. 19, R. 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).But there is not - and in the nature of things here cannot be - any such limitation for pleadings. Hence it became necessary in the verification of a pleading to demarcate clearly between the two.The allegations in the petition in this case purport to he based only on information. Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.The verifications are accordingly defective only as, regards the requirement of the datesthere may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification. In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earliercan be no doubt that almost all the instances hereinabove set out are extremely vague and lack sufficientview of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney-General that the petitioners, for some reasons best known to themselves, have come forward with a some what irresponsible petition and thatwhile the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishing of betterundoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient dismissal, the petitioners are not absolved from their duty to comply, of their own accord, with the requirements of S. 83(2) of the Act and to remove the defects when opportunity was available.They cannot take shelter behind the fact that neither the Tribunal nor respondent 1 has, in terms , called upon them to furnish better particulars.The position, therefore, on the question of compliance or otherwise of the requirements of S. 83 of the Act is that (1) the verifications in the petition and schedule are defective inasmuch as the dates thereof are not specified, and (2) the schedule of particulars consists of a number of items of which only one at best could have been taken up for inquiry by the Tribunal. But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availedthere is considerable force in this argument, we think that in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application. It should have exercised its powers and called for better particulars, on non-compliance therewith, it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.We are, therefore, of the opinion that, the order of the tribunal dismissing the petition outright was clearly erroneous. Notwithstanding this opinion we would, in the normal course, not have felt called upon to interfere in this case under Art. 136 after this lapse of time and at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of itemThe Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.
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Commissioner of Income Tax, Uttar Pradesh Vs. Bharat Engineering and Construction Company | HEGDE, J.1. The controversy in this appeal is whether a question of law arises from the order of the Tribunal. The Tribunal came to the conclusion that the cash credit entries totalling Rs. 2, 50, 000 brought to tax by the Income-tax Officer on the ground that they represented the income of the assessee-respondent from undisclosed sources was not correct. It came to the conclusion that, though the explanation given by the assessee in respect of those cash credit entries is not true, yet from the proved circumstances those cash credits could not be the income of the assessee. Aggrieved by the decision of the Tribunal, the Commissioner of Income-tax moved the Tribunal under section 66(1) of the Indian Income-tax Act, 1922, to refer certain questions to the High Court for its opinion. The Tribunal rejected the application on the ground that its findings are findings of fact and that no question of law arose from them. Thereafter, the assessee moved the High Court under section 66(2). That application was rejected by the High Court. Against that decision this appeal has been brought by special leave The assessee-company is an engineering construction company. It commenced business in May, 1943. In their account books, there are several cash credit entries in the first year of its business. We are concerned with only five of those cash credit entries. On June 1, 1943, there is a cash credit entry of Rs. 1, 00, 000. On July 6, 1943, there is a cash credit entry of Rs. 50, 000. On August 30, 1943, there is a cash credit entry of Rs. 50, 000. On December 2, 1943, there is a cash credit entry of Rs. 15, 000 and on March 15, 1944, there is a cash credit entry of Rs. 35, 000. These cash credit entries total up to Rs. 2, 50, 000. The Income-tax Officer called upon the assessee to explain those cash credit entries. The explanation given by the assessee was found to be false by the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal. But, all the same, the Tribunal felt that these cash credit entries could not represent the income or profits of the assessee-company as they were all made very soon after the company commenced its activities. In our opinion, though the order of the Tribunal is not happily worded, its finding appears to be that in the very nature of things the assessee could not have earned such a huge amount as profits very soon after it commenced its activities. A construction company takes time to earn profits. It could not have earned a profit of Rs. 1, 00, 000 within a few days, after the commencement of its business. Hence, it is reasonable to assume that those cash credit entries are capital receipts though for one reason or other the assessee had not come out with the true story as regards the person from whom it got those amounts. It is true that in the absence of satisfactory explanation from the assessee the Income-tax Officer may assume that cash credit entries in its books represent income from undisclosed sources. But what inference should be drawn from the facts proved is a question of fact and the Tribunals finding on that question is fina. lThe High Court after careful examination of the various findings reached by the Tribunal has come to the conclusion that the Tribunals findings are findings of fact. We agree with that conclusion2. | 0[ds]In our opinion, though the order of the Tribunal is not happily worded, its finding appears to be that in the very nature of things the assessee could not have earned such a huge amount as profits very soon after it commenced its activities. A construction company takes time to earn profits. It could not have earned a profit of Rs. 1, 00, 000 within a few days, after the commencement of its business. Hence, it is reasonable to assume that those cash credit entries are capital receipts though for one reason or other the assessee had not come out with the true story as regards the person from whom it got those amounts. It is true that in the absence of satisfactory explanation from the assessee theOfficer may assume that cash credit entries in its books represent income from undisclosed sources. But what inference should be drawn from the facts proved is a question of fact and the Tribunals finding on that question isHigh Court after careful examination of the various findings reached by the Tribunal has come to the conclusion that the Tribunals findings are findings of fact. We agree with that conclusion | 0 | 660 | 212 | ### Instruction:
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HEGDE, J.1. The controversy in this appeal is whether a question of law arises from the order of the Tribunal. The Tribunal came to the conclusion that the cash credit entries totalling Rs. 2, 50, 000 brought to tax by the Income-tax Officer on the ground that they represented the income of the assessee-respondent from undisclosed sources was not correct. It came to the conclusion that, though the explanation given by the assessee in respect of those cash credit entries is not true, yet from the proved circumstances those cash credits could not be the income of the assessee. Aggrieved by the decision of the Tribunal, the Commissioner of Income-tax moved the Tribunal under section 66(1) of the Indian Income-tax Act, 1922, to refer certain questions to the High Court for its opinion. The Tribunal rejected the application on the ground that its findings are findings of fact and that no question of law arose from them. Thereafter, the assessee moved the High Court under section 66(2). That application was rejected by the High Court. Against that decision this appeal has been brought by special leave The assessee-company is an engineering construction company. It commenced business in May, 1943. In their account books, there are several cash credit entries in the first year of its business. We are concerned with only five of those cash credit entries. On June 1, 1943, there is a cash credit entry of Rs. 1, 00, 000. On July 6, 1943, there is a cash credit entry of Rs. 50, 000. On August 30, 1943, there is a cash credit entry of Rs. 50, 000. On December 2, 1943, there is a cash credit entry of Rs. 15, 000 and on March 15, 1944, there is a cash credit entry of Rs. 35, 000. These cash credit entries total up to Rs. 2, 50, 000. The Income-tax Officer called upon the assessee to explain those cash credit entries. The explanation given by the assessee was found to be false by the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal. But, all the same, the Tribunal felt that these cash credit entries could not represent the income or profits of the assessee-company as they were all made very soon after the company commenced its activities. In our opinion, though the order of the Tribunal is not happily worded, its finding appears to be that in the very nature of things the assessee could not have earned such a huge amount as profits very soon after it commenced its activities. A construction company takes time to earn profits. It could not have earned a profit of Rs. 1, 00, 000 within a few days, after the commencement of its business. Hence, it is reasonable to assume that those cash credit entries are capital receipts though for one reason or other the assessee had not come out with the true story as regards the person from whom it got those amounts. It is true that in the absence of satisfactory explanation from the assessee the Income-tax Officer may assume that cash credit entries in its books represent income from undisclosed sources. But what inference should be drawn from the facts proved is a question of fact and the Tribunals finding on that question is fina. lThe High Court after careful examination of the various findings reached by the Tribunal has come to the conclusion that the Tribunals findings are findings of fact. We agree with that conclusion2.
### Response:
0
### Explanation:
In our opinion, though the order of the Tribunal is not happily worded, its finding appears to be that in the very nature of things the assessee could not have earned such a huge amount as profits very soon after it commenced its activities. A construction company takes time to earn profits. It could not have earned a profit of Rs. 1, 00, 000 within a few days, after the commencement of its business. Hence, it is reasonable to assume that those cash credit entries are capital receipts though for one reason or other the assessee had not come out with the true story as regards the person from whom it got those amounts. It is true that in the absence of satisfactory explanation from the assessee theOfficer may assume that cash credit entries in its books represent income from undisclosed sources. But what inference should be drawn from the facts proved is a question of fact and the Tribunals finding on that question isHigh Court after careful examination of the various findings reached by the Tribunal has come to the conclusion that the Tribunals findings are findings of fact. We agree with that conclusion
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UNION OF INDIA (UOI) Vs. H.M.M. LTD | 1. As per Office Report dated 17th day of September, 2011 service of notice is complete on both the Respondents by way of publication, but no one has entered appearance on their behalf so far. The Appeal has been set down for hearing ex-parte against both the Respondents. 2. This Appeal is directed against the judgment and order dated 16-9-2002 [2005 (192) E.L.T. 63 (Del.)] passed by the High Court of Delhi in Civil Writ No. 443 of 1986. 3. The revenue has framed the following question of law for our consideration and decision: ...whether the stock of excisable goods manufactured before enhanced rates of excise duty come into force but cleared after such enhancement in the duty, are liable to enhanced rate of duty as per Section 9A(1) of the Central Excise Act, 1944. 4. In our view, the aforesaid question of law is no more res integra in view of the decisions of this Court in Wallace Flour Mills Co. Ltd. Vs. Collector of Central Excise, Bombay, Division III, Collector of Central Excise, Madras Vs. Newman Press and Others, and Collector of Central Excise Vs. Polyset Corporation, 5. In Wallace Flour Mills Company Ltd. (supra) this Court has observed: It is well settled by the scheme of Central Excises and Salt Act and clarified by several decisions that even though the taxable event is manufacture or production of excisable article, the duty can be levied and collected at a later stage for administrative convenience. The scheme of the Excise Act read with relevant rules particularly Excise Rule 9A reveals that the taxable event is the manufacture and the payment of duty is related to the date of removal of such article from the factory. Therefore when the goods were unconditionally exempted from duty on the date of manufacture but were dutiable on the date of their removal they would be liable to duty because on the basis of Rule 9A of the Central Excise Rules, 1944, the Excise authorities are within competence to apply the rates prevalent on the date of removal. 6. In Collector of Central Excise, Bombay v. Polyset Corporation (supra) it is observed as under: We are in no doubt that the Tribunal was in error in the view that it took. The said goods were excisable to excise duty under the tariff that then pre, vailed. When manufactured, an exemption notification wholly exempted the said goods from the payment of excise duty. When they were cleared from the Respondents factory, the exemption notification had been modified so that they were liable to duty at the rate of eight per cent. For the purpose of determining whether they said goods were excisable, what is relevant is the date of their manufacture. On that date they were exigible to excise duty. As to the rate of duty that the said goods must bear, what is relevant is the date of their clearance. On that date they were liable to duty at the rate of eight per cent by reason of the amended exemption notification. 7. We are in the respectful agreement with the observations made by this Court in the aforesaid decision. | 1[ds]4. In our view, the aforesaid question of law is no more res integra in view of the decisions of this Court in Wallace Flour Mills Co. Ltd. Vs. Collector of Central Excise, Bombay, Division III, Collector of Central Excise, Madras Vs. Newman Press and Others, and Collector of Central Excise Vs. Polyset Corporation,5. In Wallace Flour Mills Company Ltd. (supra) this Court has observed:It is well settled by the scheme of Central Excises and Salt Act and clarified by several decisions that even though the taxable event is manufacture or production of excisable article, the duty can be levied and collected at a later stage for administrative convenience. The scheme of the Excise Act read with relevant rules particularly Excise Rule 9A reveals that the taxable event is the manufacture and the payment of duty is related to the date of removal of such article from the factory. Therefore when the goods were unconditionally exempted from duty on the date of manufacture but were dutiable on the date of their removal they would be liable to duty because on the basis of Rule 9A of the Central Excise Rules, 1944, the Excise authorities are within competence to apply the rates prevalent on the date of removal.6. In Collector of Central Excise, Bombay v. Polyset Corporation (supra) it is observed as under:We are in no doubt that the Tribunal was in error in the view that it took. The said goods were excisable to excise duty under the tariff that then pre, vailed. When manufactured, an exemption notification wholly exempted the said goods from the payment of excise duty. When they were cleared from the Respondents factory, the exemption notification had been modified so that they were liable to duty at the rate of eight per cent. For the purpose of determining whether they said goods were excisable, what is relevant is the date of their manufacture. On that date they were exigible to excise duty. As to the rate of duty that the said goods must bear, what is relevant is the date of their clearance. On that date they were liable to duty at the rate of eight per cent by reason of the amended exemption notification.7. We are in the respectful agreement with the observations made by this Court in the aforesaid decision. | 1 | 590 | 428 | ### Instruction:
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1. As per Office Report dated 17th day of September, 2011 service of notice is complete on both the Respondents by way of publication, but no one has entered appearance on their behalf so far. The Appeal has been set down for hearing ex-parte against both the Respondents. 2. This Appeal is directed against the judgment and order dated 16-9-2002 [2005 (192) E.L.T. 63 (Del.)] passed by the High Court of Delhi in Civil Writ No. 443 of 1986. 3. The revenue has framed the following question of law for our consideration and decision: ...whether the stock of excisable goods manufactured before enhanced rates of excise duty come into force but cleared after such enhancement in the duty, are liable to enhanced rate of duty as per Section 9A(1) of the Central Excise Act, 1944. 4. In our view, the aforesaid question of law is no more res integra in view of the decisions of this Court in Wallace Flour Mills Co. Ltd. Vs. Collector of Central Excise, Bombay, Division III, Collector of Central Excise, Madras Vs. Newman Press and Others, and Collector of Central Excise Vs. Polyset Corporation, 5. In Wallace Flour Mills Company Ltd. (supra) this Court has observed: It is well settled by the scheme of Central Excises and Salt Act and clarified by several decisions that even though the taxable event is manufacture or production of excisable article, the duty can be levied and collected at a later stage for administrative convenience. The scheme of the Excise Act read with relevant rules particularly Excise Rule 9A reveals that the taxable event is the manufacture and the payment of duty is related to the date of removal of such article from the factory. Therefore when the goods were unconditionally exempted from duty on the date of manufacture but were dutiable on the date of their removal they would be liable to duty because on the basis of Rule 9A of the Central Excise Rules, 1944, the Excise authorities are within competence to apply the rates prevalent on the date of removal. 6. In Collector of Central Excise, Bombay v. Polyset Corporation (supra) it is observed as under: We are in no doubt that the Tribunal was in error in the view that it took. The said goods were excisable to excise duty under the tariff that then pre, vailed. When manufactured, an exemption notification wholly exempted the said goods from the payment of excise duty. When they were cleared from the Respondents factory, the exemption notification had been modified so that they were liable to duty at the rate of eight per cent. For the purpose of determining whether they said goods were excisable, what is relevant is the date of their manufacture. On that date they were exigible to excise duty. As to the rate of duty that the said goods must bear, what is relevant is the date of their clearance. On that date they were liable to duty at the rate of eight per cent by reason of the amended exemption notification. 7. We are in the respectful agreement with the observations made by this Court in the aforesaid decision.
### Response:
1
### Explanation:
4. In our view, the aforesaid question of law is no more res integra in view of the decisions of this Court in Wallace Flour Mills Co. Ltd. Vs. Collector of Central Excise, Bombay, Division III, Collector of Central Excise, Madras Vs. Newman Press and Others, and Collector of Central Excise Vs. Polyset Corporation,5. In Wallace Flour Mills Company Ltd. (supra) this Court has observed:It is well settled by the scheme of Central Excises and Salt Act and clarified by several decisions that even though the taxable event is manufacture or production of excisable article, the duty can be levied and collected at a later stage for administrative convenience. The scheme of the Excise Act read with relevant rules particularly Excise Rule 9A reveals that the taxable event is the manufacture and the payment of duty is related to the date of removal of such article from the factory. Therefore when the goods were unconditionally exempted from duty on the date of manufacture but were dutiable on the date of their removal they would be liable to duty because on the basis of Rule 9A of the Central Excise Rules, 1944, the Excise authorities are within competence to apply the rates prevalent on the date of removal.6. In Collector of Central Excise, Bombay v. Polyset Corporation (supra) it is observed as under:We are in no doubt that the Tribunal was in error in the view that it took. The said goods were excisable to excise duty under the tariff that then pre, vailed. When manufactured, an exemption notification wholly exempted the said goods from the payment of excise duty. When they were cleared from the Respondents factory, the exemption notification had been modified so that they were liable to duty at the rate of eight per cent. For the purpose of determining whether they said goods were excisable, what is relevant is the date of their manufacture. On that date they were exigible to excise duty. As to the rate of duty that the said goods must bear, what is relevant is the date of their clearance. On that date they were liable to duty at the rate of eight per cent by reason of the amended exemption notification.7. We are in the respectful agreement with the observations made by this Court in the aforesaid decision.
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Rustom & Hornsby (1) Ltd Vs. T. B. Kadam | is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute. Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid. All that S. 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen. What a labour union or a group of workmen can do the law is competent to do. The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers, Ltd. v. Modak I. L. R. 1948 2 Cal. 209, it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference. The same reasoning would apply to a reference of a dispute falling under S. 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brothers case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills, Nagpur, [1966-I L.L.J. 430]. These two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere. | 1[ds]We are not able to accept this contention. Section 2A is in effect a definition section. It provides in effect that what would not be an industrial dispute as defined in S. 2(k) as interpreted by this Court would be deemed to be an industrial dispute in certain circumstances. As was pointed out by this Court in Chemicals & Fibres of India Ltd. v. D. S. Bhoir, [1975-II L.L.J. 168], the definition could as well have been made part of cl. (k) of S. 2 instead of being put in as a separate section. There is, therefore, no question of giving retrospective effect to that section in making the reference which resulted in the award underonly relevant factor for consideration in making a reference under S. 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under S. 2A did exist. Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrialThese two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere. | 1 | 2,716 | 984 | ### Instruction:
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is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute. Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid. All that S. 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen. What a labour union or a group of workmen can do the law is competent to do. The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers, Ltd. v. Modak I. L. R. 1948 2 Cal. 209, it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference. The same reasoning would apply to a reference of a dispute falling under S. 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brothers case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills, Nagpur, [1966-I L.L.J. 430]. These two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere.
### Response:
1
### Explanation:
We are not able to accept this contention. Section 2A is in effect a definition section. It provides in effect that what would not be an industrial dispute as defined in S. 2(k) as interpreted by this Court would be deemed to be an industrial dispute in certain circumstances. As was pointed out by this Court in Chemicals & Fibres of India Ltd. v. D. S. Bhoir, [1975-II L.L.J. 168], the definition could as well have been made part of cl. (k) of S. 2 instead of being put in as a separate section. There is, therefore, no question of giving retrospective effect to that section in making the reference which resulted in the award underonly relevant factor for consideration in making a reference under S. 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under S. 2A did exist. Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrialThese two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere.
|
Star India Pvt. Ltd Vs. Sea T.V. Network Ltd. | the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will not be an agent of Star India Pvt. Ltd. (Broadcaster). In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would not be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to note that under the Interconnection Regulations exclusivity of contracts stands eliminated.14. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. (See clause 1.1). This is where the difficulty comes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in competition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its competitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea T.V. Network may not be the same as the quality of signals through Decoders. In this connection fudging of data (voice and picture) is possible. Even the speed of data-transmission to Sea T.V. Network could get affected.15. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance could be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from competition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra.16. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels and re-transmission of T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2(b) an agent is a person authorized by a broadcaster to make available T.V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. (which Agreement was not placed before the Tribunal) Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is not an agent. In fact, the contract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is not based on principal-agent relationship.17. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2(j) the word “distributor” of TV channels is defined to mean, any person who re-transmits T.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter comes under the expression “make available T.V. channels” in terms of clause 2(b)of the Interconnection Regulations. Clause 2(b) is applicable because the broadcaster makes available the T.V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2(j) would apply because after receiving signals through the cable from the broadcaster the distributor (Moon Network Pvt. Ltd.) re-transmits the T.V. channels through the Feed to Sea T.V. Network.18. Therefore, there is vital distinction between what is received by an agent-cum-distributor from the broadcaster and what is subsequently re-transmitted by that agent-cum-distributor to other MSOs/Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, correctly drawn a distinction between what is called as “making available of T.V. channels” and re-transmission of T.V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a competitor or part of the network, particularly when under the contract between the broadcaster and the designated agent-cum- distributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such an agent-cum- distributor which in the present case happens to be Moon Network Pvt. Ltd. | 1[ds]12. Firstly, we do not find any error in the judgment which has held that in providing signals to a distributor through an agent who is also in turn a distributor is per se discriminatory. We agree with the contention of Mr. Rohtagi learned senior counsel that in the case of overlap of functions to be performed by each entity under the Interconnection Regulations like a Distributor, MSO, agent/intermediary, one has to go by the facts of each case and the terms of Agreement between the broadcaster and his agent cum distributor. Every contract under the Interconnection Regulations has two aspects. One concerns the commercial side whereas the other concerns the technical side. There is no difficulty for the commercial side. If the broadcaster appoints an agent on the commercial side to collect the statistics of the number of subscribers or for distribution of Decoders there is no dispute. On the commercial side when an agent is appointed by the broadcaster that agent need not be from the Operation Network. Such an agent normally is not a technical service provider. The difficulty arises when the broadcaster as in the present case appoints or enters into an agreement with a distributor, who in turn is an MSO and who in turn has his own business because in such a case such anis also a competitor of the MSO who seeks signals from the broadcaster. We are living in a competitive world today. If under the Interconnection Regulations an MSO is entitled to receive signals directly from a broadcaster, if directed to approach his competitor MSO then discrimination comes in. The reason is obvious. The exclusive agent of a broadcaster has his own subscriber base. His base is different from another MSO in the same territory. If that another MSO has to depend on the Feed to be provided by the exclusive agent of the broadcaster then the very object of the Interconnection Regulation stands defeated.13. We are satisfied that even technically the quality of signals receivable through the Decoders is different from the quality of signals receivable through cable feed. In the present case the broadcaster has appointed Moon Network as its Distributor for the territory of Agra. In the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will not be an agent of Star India Pvt. Ltd. (Broadcaster). In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would not be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to note that under the Interconnection Regulations exclusivity of contracts stands eliminated.14. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. (See clause 1.1). This is where the difficulty comes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in competition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its competitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea T.V. Network may not be the same as the quality of signals through Decoders. In this connection fudging of data (voice and picture) is possible. Even the speed ofto Sea T.V. Network could get affected.15. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance could be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from competition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra.16. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels andof T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2(b) an agent is a person authorized by a broadcaster to make available T.V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. (which Agreement was not placed before the Tribunal) Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is not an agent. In fact, the contract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is not based onrelationship.17. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2(j) the wordof TV channels is defined to mean, any person whoT.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter comes under the expressionin terms of clause 2(b)of the Interconnection Regulations. Clause 2(b) is applicable because the broadcaster makes available the T.V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2(j) would apply because after receiving signals through the cable from the broadcaster the distributor (Moon Network Pvt. Ltd.)the T.V. channels through the Feed to Sea T.V. Network.18. Therefore, there is vital distinction between what is received by anfrom the broadcaster and what is subsequentlytor to other MSOs/Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, correctly drawn a distinction between what is called asavailable of T.V.on of T.V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a competitor or part of the network, particularly when under the contract between the broadcaster and the designateddistributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such andistributor which in the present case happens to be Moon Network Pvt. Ltd. | 1 | 5,575 | 1,499 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will not be an agent of Star India Pvt. Ltd. (Broadcaster). In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would not be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to note that under the Interconnection Regulations exclusivity of contracts stands eliminated.14. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. (See clause 1.1). This is where the difficulty comes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in competition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its competitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea T.V. Network may not be the same as the quality of signals through Decoders. In this connection fudging of data (voice and picture) is possible. Even the speed of data-transmission to Sea T.V. Network could get affected.15. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance could be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from competition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra.16. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels and re-transmission of T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2(b) an agent is a person authorized by a broadcaster to make available T.V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. (which Agreement was not placed before the Tribunal) Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is not an agent. In fact, the contract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is not based on principal-agent relationship.17. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2(j) the word “distributor” of TV channels is defined to mean, any person who re-transmits T.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter comes under the expression “make available T.V. channels” in terms of clause 2(b)of the Interconnection Regulations. Clause 2(b) is applicable because the broadcaster makes available the T.V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2(j) would apply because after receiving signals through the cable from the broadcaster the distributor (Moon Network Pvt. Ltd.) re-transmits the T.V. channels through the Feed to Sea T.V. Network.18. Therefore, there is vital distinction between what is received by an agent-cum-distributor from the broadcaster and what is subsequently re-transmitted by that agent-cum-distributor to other MSOs/Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, correctly drawn a distinction between what is called as “making available of T.V. channels” and re-transmission of T.V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a competitor or part of the network, particularly when under the contract between the broadcaster and the designated agent-cum- distributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such an agent-cum- distributor which in the present case happens to be Moon Network Pvt. Ltd.
### Response:
1
### Explanation:
the Decoders is different from the quality of signals receivable through cable feed. In the present case the broadcaster has appointed Moon Network as its Distributor for the territory of Agra. In the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will not be an agent of Star India Pvt. Ltd. (Broadcaster). In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would not be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to note that under the Interconnection Regulations exclusivity of contracts stands eliminated.14. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. (See clause 1.1). This is where the difficulty comes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in competition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its competitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea T.V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea T.V. Network may not be the same as the quality of signals through Decoders. In this connection fudging of data (voice and picture) is possible. Even the speed ofto Sea T.V. Network could get affected.15. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance could be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from competition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra.16. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels andof T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2(b) an agent is a person authorized by a broadcaster to make available T.V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. (which Agreement was not placed before the Tribunal) Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is not an agent. In fact, the contract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is not based onrelationship.17. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2(j) the wordof TV channels is defined to mean, any person whoT.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter comes under the expressionin terms of clause 2(b)of the Interconnection Regulations. Clause 2(b) is applicable because the broadcaster makes available the T.V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2(j) would apply because after receiving signals through the cable from the broadcaster the distributor (Moon Network Pvt. Ltd.)the T.V. channels through the Feed to Sea T.V. Network.18. Therefore, there is vital distinction between what is received by anfrom the broadcaster and what is subsequentlytor to other MSOs/Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, correctly drawn a distinction between what is called asavailable of T.V.on of T.V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a competitor or part of the network, particularly when under the contract between the broadcaster and the designateddistributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such andistributor which in the present case happens to be Moon Network Pvt. Ltd.
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National Insurance Co.Ltd Vs. Sebastian K.Jacob | Dr. Arijit Pasayat, J. 1. Leave granted. 2. The controversy lies within a very narrow compass. The appellant had filed appeal before the Kerala High Court questioning the correctness of a judgment rendered by Motor Accident Claims Tribunal, Thalassery. The award was passed in favour of the respondent allowing him to realize a sum of Rs.24,033/- with interest with proportionate cost from the driver, owner and present appellant jointly and severally payable by the present appellant. According to the appellant, the insurer is not liable to make the payment since the claimant is already compensated by another Insurance Company by paying Rs.21,700/- for the same cause of action consequent to the same accident. Therefore, it was submitted that the respondent was not entitled to double payment of compensation. The High Court did not accept the plea and upheld the award of MACT. 3. Learned counsel for the appellant submitted that in respect of the very same claim, the matter was settled by another Insurance Company. It was accepted by the claimant that he had settled his claim with the insurer of the jeep. But according to him that is of no consequence and did not debar him from making a claim under the statutory liability against the tortfeasor. Learned counsel for the appellant submitted that there cannot be double benefit in respect of the same accident. The claimant had accepted that he had settled the matter and received the money in respect of the jeep in question. There was no scope for granting a further relief. 4. There is no appearance on behalf of the respondent. 5. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, the Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with the stage carriage on 13.7.1995 and the damage claim was settled for Rs.21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective. | 1[ds]5. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, the Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with the stage carriage on 13.7.1995 and the damage claim was settled for Rs.21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective. | 1 | 384 | 96 | ### 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:
Dr. Arijit Pasayat, J. 1. Leave granted. 2. The controversy lies within a very narrow compass. The appellant had filed appeal before the Kerala High Court questioning the correctness of a judgment rendered by Motor Accident Claims Tribunal, Thalassery. The award was passed in favour of the respondent allowing him to realize a sum of Rs.24,033/- with interest with proportionate cost from the driver, owner and present appellant jointly and severally payable by the present appellant. According to the appellant, the insurer is not liable to make the payment since the claimant is already compensated by another Insurance Company by paying Rs.21,700/- for the same cause of action consequent to the same accident. Therefore, it was submitted that the respondent was not entitled to double payment of compensation. The High Court did not accept the plea and upheld the award of MACT. 3. Learned counsel for the appellant submitted that in respect of the very same claim, the matter was settled by another Insurance Company. It was accepted by the claimant that he had settled his claim with the insurer of the jeep. But according to him that is of no consequence and did not debar him from making a claim under the statutory liability against the tortfeasor. Learned counsel for the appellant submitted that there cannot be double benefit in respect of the same accident. The claimant had accepted that he had settled the matter and received the money in respect of the jeep in question. There was no scope for granting a further relief. 4. There is no appearance on behalf of the respondent. 5. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, the Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with the stage carriage on 13.7.1995 and the damage claim was settled for Rs.21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective.
### Response:
1
### Explanation:
5. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, the Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with the stage carriage on 13.7.1995 and the damage claim was settled for Rs.21,700/- on 6.12.1995. The High Court does not appear to have considered this aspect in the proper perspective.
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SMT. KAVITA Vs. THE STATE OF UTTAR PRADESH THROUGH SECRETARY | upon and the no confidence motion has been passed against the appellant by majority, no further enquiry into the grounds urged by the appellant is warranted. Be that as it may, even the first ground urged by the appellant has been justly negatived by the High Court following the exposition of the Full Bench of the same High Court in Smt. Sheela Devi Vs. State of U.P. and Ors., 1 which decision adverts to the dictum of another Full Bench decision of the same High Court in Mathura Prasad Tewari Vs. Assistant District Panchayat Officer, Faizabad. 2 In the impugned judgment, the Division Bench has reproduced paragraph 23 of the Full Bench decision in Sheela Devi, (supra) which reads thus: 23. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with the stipulation of time enunciated in sub-section (3) of Section 15 of convening a meeting no later than thirty days from the date of delivery of the notice and of issuing at least a fifteen days notice to all the elected members of the Kshettra Panchayat, it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice. Where a finding in regard to the validity of the signatures can only be arrived at in an enquiry on the basis of evidence adduced in the course of an evidentiary hearing at 1 AIR 2015 All. 65 2 1966 ALJ 612 a full-fledged trial, such an enquiry would be outside the purview of Section 15. The Collector does not exercise the powers of a Court upon receipt of a notice and when he transmits the notice for consideration at a meeting of the elected members of the Kshettra Panchayat. Hence, it would not be open to the Collector to resolve or enter findings of fact on seriously disputed questions such as forgery, fraud and coercion. However, consistent with the law which has been laid down by the Full Bench in Mathura Prasad Tewaris case, it is open to the Collector, having due regard to the nature and ambit of his jurisdiction under sub-section (3) to determine as to whether the requirements of a valid notice under sub-section (2) of Section 15 have been fulfilled. The proceeding before the Collector under sub-section (2) of Section 15 of the Act of 1961 is more in the nature of a summary proceeding. The Collector for the purpose of Section 15, does not have the trappings of a Court exercising jurisdiction on the basis of evidence adduced at a trial of a judicial proceeding. Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed. (emphasis supplied) 7. Notably, this Court in the case of Kiran Pal Singh Vs. The State of Uttar Pradesh & Ors. (in C.A. No.2622 of 2018 decided on 17 th May, 2018) 3 has had an occasion to explicate on the purport of Section 15(2) of the Act. In paragraph 15 of this decision the Court observed thus: 15. To appreciate the controversy, we have to understand the scheme engrafted under Section 15 of the Act. Subsection (2) of Section 15 provides that a written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. Subsection (3) requires the Collector to convene a meeting. At this stage, the jurisdiction that the Collector has is only to scan the notice to find out whether it fulfills the essential requirements of a valid notice. The exercise of the said discretion, as we perceive, has to be summary in nature. There cannot be a detailed inquiry with regard to the validity of the notice. We are obliged to think so as subsection (3) mandates that a meeting has to be convened not later than 30 days from the date of delivery of the notice and further there should be at least 15 days notice to be given to all the elected members of the Kshettra Panchayat. The Collector, therefore, should not assume power to enter into an arena or record a finding on seriously disputed questions of facts relating to fraud, undue influence or coercion. His only duty is to determine whether there has been a valid notice as contemplated under Subsection (2) of Section 15. His delving deep to conduct a regular inquiry would frustrate the provision. He must function within his own limits and leave the rest to be determined in the meeting. (emphasis supplied) 3 2018 (7) SCALE 605 8. In view of the above, the ground urged by the appellant that the Collector ought to have enquired into the validity of the signatures of 10 members, who subsequently filed affidavits stating that their signatures were obtained by fraud, had been justly negatived by the High Court. Hence, the impugned judgment does not warrant any interference. As no other contention has been urged, the appeal must fail. | 0[ds]7. Notably, this Court in the case of Kiran Pal Singh Vs. The State of Uttar Pradesh & Ors. (in C.A. No.2622 of 2018 decided on 17 th May, 2018) 3 has had an occasion to explicate on the purport of Section 15(2) of the Act. In paragraph 15 of this decision the Court observed thus:15. To appreciate the controversy, we have to understand the scheme engrafted under Section 15 of the Act. Subsection (2) of Section 15 provides that a written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. Subsection (3) requires the Collector to convene a meeting. At this stage, the jurisdiction that the Collector has is only to scan the notice to find out whether it fulfills the essential requirements of a valid notice. The exercise of the said discretion, as we perceive, has to be summary in nature. There cannot be a detailed inquiry with regard to the validity of the notice. We are obliged to think so as subsection (3) mandates that a meeting has to be convened not later than 30 days from the date of delivery of the notice and further there should be at least 15 days notice to be given to all the elected members of the Kshettra Panchayat. The Collector, therefore, should not assume power to enter into an arena or record a finding on seriously disputed questions of facts relating to fraud, undue influence or coercion. His only duty is to determine whether there has been a valid notice as contemplated under Subsection (2) of Section 15. His delving deep to conduct a regular inquiry would frustrate the provision. He must function within his own limits and leave the rest to be determined in the meeting(emphasis supplied) 3 2018 (7) SCALE 605 8. In view of the above, the ground urged by the appellant that the Collector ought to have enquired into the validity of the signatures of 10 members, who subsequently filed affidavits stating that their signatures were obtained by fraud, had been justly negatived by the High Court. Hence, the impugned judgment does not warrant any interference. As no other contention has been urged, the appeal must fail. | 0 | 1,746 | 479 | ### Instruction:
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upon and the no confidence motion has been passed against the appellant by majority, no further enquiry into the grounds urged by the appellant is warranted. Be that as it may, even the first ground urged by the appellant has been justly negatived by the High Court following the exposition of the Full Bench of the same High Court in Smt. Sheela Devi Vs. State of U.P. and Ors., 1 which decision adverts to the dictum of another Full Bench decision of the same High Court in Mathura Prasad Tewari Vs. Assistant District Panchayat Officer, Faizabad. 2 In the impugned judgment, the Division Bench has reproduced paragraph 23 of the Full Bench decision in Sheela Devi, (supra) which reads thus: 23. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with the stipulation of time enunciated in sub-section (3) of Section 15 of convening a meeting no later than thirty days from the date of delivery of the notice and of issuing at least a fifteen days notice to all the elected members of the Kshettra Panchayat, it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice. Where a finding in regard to the validity of the signatures can only be arrived at in an enquiry on the basis of evidence adduced in the course of an evidentiary hearing at 1 AIR 2015 All. 65 2 1966 ALJ 612 a full-fledged trial, such an enquiry would be outside the purview of Section 15. The Collector does not exercise the powers of a Court upon receipt of a notice and when he transmits the notice for consideration at a meeting of the elected members of the Kshettra Panchayat. Hence, it would not be open to the Collector to resolve or enter findings of fact on seriously disputed questions such as forgery, fraud and coercion. However, consistent with the law which has been laid down by the Full Bench in Mathura Prasad Tewaris case, it is open to the Collector, having due regard to the nature and ambit of his jurisdiction under sub-section (3) to determine as to whether the requirements of a valid notice under sub-section (2) of Section 15 have been fulfilled. The proceeding before the Collector under sub-section (2) of Section 15 of the Act of 1961 is more in the nature of a summary proceeding. The Collector for the purpose of Section 15, does not have the trappings of a Court exercising jurisdiction on the basis of evidence adduced at a trial of a judicial proceeding. Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed. (emphasis supplied) 7. Notably, this Court in the case of Kiran Pal Singh Vs. The State of Uttar Pradesh & Ors. (in C.A. No.2622 of 2018 decided on 17 th May, 2018) 3 has had an occasion to explicate on the purport of Section 15(2) of the Act. In paragraph 15 of this decision the Court observed thus: 15. To appreciate the controversy, we have to understand the scheme engrafted under Section 15 of the Act. Subsection (2) of Section 15 provides that a written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. Subsection (3) requires the Collector to convene a meeting. At this stage, the jurisdiction that the Collector has is only to scan the notice to find out whether it fulfills the essential requirements of a valid notice. The exercise of the said discretion, as we perceive, has to be summary in nature. There cannot be a detailed inquiry with regard to the validity of the notice. We are obliged to think so as subsection (3) mandates that a meeting has to be convened not later than 30 days from the date of delivery of the notice and further there should be at least 15 days notice to be given to all the elected members of the Kshettra Panchayat. The Collector, therefore, should not assume power to enter into an arena or record a finding on seriously disputed questions of facts relating to fraud, undue influence or coercion. His only duty is to determine whether there has been a valid notice as contemplated under Subsection (2) of Section 15. His delving deep to conduct a regular inquiry would frustrate the provision. He must function within his own limits and leave the rest to be determined in the meeting. (emphasis supplied) 3 2018 (7) SCALE 605 8. In view of the above, the ground urged by the appellant that the Collector ought to have enquired into the validity of the signatures of 10 members, who subsequently filed affidavits stating that their signatures were obtained by fraud, had been justly negatived by the High Court. Hence, the impugned judgment does not warrant any interference. As no other contention has been urged, the appeal must fail.
### Response:
0
### Explanation:
7. Notably, this Court in the case of Kiran Pal Singh Vs. The State of Uttar Pradesh & Ors. (in C.A. No.2622 of 2018 decided on 17 th May, 2018) 3 has had an occasion to explicate on the purport of Section 15(2) of the Act. In paragraph 15 of this decision the Court observed thus:15. To appreciate the controversy, we have to understand the scheme engrafted under Section 15 of the Act. Subsection (2) of Section 15 provides that a written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. Subsection (3) requires the Collector to convene a meeting. At this stage, the jurisdiction that the Collector has is only to scan the notice to find out whether it fulfills the essential requirements of a valid notice. The exercise of the said discretion, as we perceive, has to be summary in nature. There cannot be a detailed inquiry with regard to the validity of the notice. We are obliged to think so as subsection (3) mandates that a meeting has to be convened not later than 30 days from the date of delivery of the notice and further there should be at least 15 days notice to be given to all the elected members of the Kshettra Panchayat. The Collector, therefore, should not assume power to enter into an arena or record a finding on seriously disputed questions of facts relating to fraud, undue influence or coercion. His only duty is to determine whether there has been a valid notice as contemplated under Subsection (2) of Section 15. His delving deep to conduct a regular inquiry would frustrate the provision. He must function within his own limits and leave the rest to be determined in the meeting(emphasis supplied) 3 2018 (7) SCALE 605 8. In view of the above, the ground urged by the appellant that the Collector ought to have enquired into the validity of the signatures of 10 members, who subsequently filed affidavits stating that their signatures were obtained by fraud, had been justly negatived by the High Court. Hence, the impugned judgment does not warrant any interference. As no other contention has been urged, the appeal must fail.
|
BHARTIBEN NAYABHA KER Vs. SIDABHA PETHABHA MANKE | CORRIGENDUM 1 After the judgment was delivered on 5 April 2018, the matter has been mentioned for correcting certain typographical mistakes in the judgment. We accordingly correct the judgment dated 5 April 2018 to the following extent: (i) The last sentence of paragraph 4 shall stand corrected to read as follows: ?Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 12% p.a. to 9% p.a.? (ii) Paragraph 6 of the judgment shall stand substituted with the following paragraph: ?We find no reason to interfere with the award of interest at 9% p.a. by the High Court.? Dr D Y CHANDRACHUD, J 1. The present appeal arises from a judgment of a learned Single Judge dated 15 March 2016, in a first appeal from the decision of the Motor Accident Claims Tribunal (MACT), Jamnagar. 2. The appellants are heirs and legal representatives of Nayabha Mapbha Ker who died as a result of a motor accident on 18 July 1993. He was travelling in a jeep bearing Registration No GBI-7896 which was being driven by the fourth respondent towards Mithapur. At about 3.00 am the first respondent who REPORTABLE was driving a truck bearing Registration No.GJ-10-T-747, came from the opposite direction and dashed against the jeep. Nayabha was seriously injured and died during the course of the accident. His heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Jamnagar seeking compensation in the amount of Rs 13 lakhs. By its award dated 19 July 1999 the Tribunal allowed the claim in the amount of Rs 7,78,000 together with interest at the rate of 12 % per annum. The appellants filed a first appeal before the High Court of Gujarat. The High Court, by its impugned judgment, allowed an additional amount of Rs 33,000 under the head of loss of life, expenses and consortium but reduced the rate of interest from 12 % p.a. to 9% p.a. Aggrieved by the judgment of the High Court, the claimants are in appeal. 3. The deceased was 41 years old at the time of the accident. He had acquired a B.A. and B.Ed. qualification. For seven years, he had served as President of the Taluka Panchayat. The deceased owned agricultural land. The Tribunal assessed the annual income of the deceased at Rs.81,000 comprised of his agricultural income and income from other sources. Applying a multiplier of 12, the Tribunal computed an amount of Rs. 7.56 lakhs towards the loss of dependency. A total amount of Rs 7.78 lakhs was awarded inclusive of conventional heads. In appeal, the High Court came to the conclusion that the total income would work out to Rs 92,000 out of which one fourth would be deducted for personal expenses. Applying a multiplier of 14, the High Court awarded an additional amount of Rs 33,000. However, the rate of interest has been reduced to 9% per annum. 4. Basically two submissions have been urged on behalf of the appellants. First, it has been urged that the High Court did not allow for future prospects for which provision has to be made in view of the law settled by a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi 1 . Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 9% p.a. to 6% p.a. 5. The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgment in Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6. We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored. 7. | 1[ds]The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgmentin Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored. | 1 | 857 | 203 | ### Instruction:
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CORRIGENDUM 1 After the judgment was delivered on 5 April 2018, the matter has been mentioned for correcting certain typographical mistakes in the judgment. We accordingly correct the judgment dated 5 April 2018 to the following extent: (i) The last sentence of paragraph 4 shall stand corrected to read as follows: ?Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 12% p.a. to 9% p.a.? (ii) Paragraph 6 of the judgment shall stand substituted with the following paragraph: ?We find no reason to interfere with the award of interest at 9% p.a. by the High Court.? Dr D Y CHANDRACHUD, J 1. The present appeal arises from a judgment of a learned Single Judge dated 15 March 2016, in a first appeal from the decision of the Motor Accident Claims Tribunal (MACT), Jamnagar. 2. The appellants are heirs and legal representatives of Nayabha Mapbha Ker who died as a result of a motor accident on 18 July 1993. He was travelling in a jeep bearing Registration No GBI-7896 which was being driven by the fourth respondent towards Mithapur. At about 3.00 am the first respondent who REPORTABLE was driving a truck bearing Registration No.GJ-10-T-747, came from the opposite direction and dashed against the jeep. Nayabha was seriously injured and died during the course of the accident. His heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Jamnagar seeking compensation in the amount of Rs 13 lakhs. By its award dated 19 July 1999 the Tribunal allowed the claim in the amount of Rs 7,78,000 together with interest at the rate of 12 % per annum. The appellants filed a first appeal before the High Court of Gujarat. The High Court, by its impugned judgment, allowed an additional amount of Rs 33,000 under the head of loss of life, expenses and consortium but reduced the rate of interest from 12 % p.a. to 9% p.a. Aggrieved by the judgment of the High Court, the claimants are in appeal. 3. The deceased was 41 years old at the time of the accident. He had acquired a B.A. and B.Ed. qualification. For seven years, he had served as President of the Taluka Panchayat. The deceased owned agricultural land. The Tribunal assessed the annual income of the deceased at Rs.81,000 comprised of his agricultural income and income from other sources. Applying a multiplier of 12, the Tribunal computed an amount of Rs. 7.56 lakhs towards the loss of dependency. A total amount of Rs 7.78 lakhs was awarded inclusive of conventional heads. In appeal, the High Court came to the conclusion that the total income would work out to Rs 92,000 out of which one fourth would be deducted for personal expenses. Applying a multiplier of 14, the High Court awarded an additional amount of Rs 33,000. However, the rate of interest has been reduced to 9% per annum. 4. Basically two submissions have been urged on behalf of the appellants. First, it has been urged that the High Court did not allow for future prospects for which provision has to be made in view of the law settled by a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi 1 . Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 9% p.a. to 6% p.a. 5. The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgment in Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6. We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored. 7.
### Response:
1
### Explanation:
The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgmentin Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.
|
Kashi Vidyapith Vs. Motilal & Others | known as the Kashi Vidyapith, Varanasi shall be dissolved, and all property movable and immovable, and rights, powers and privileges of the society shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is established;" 6. Section 8 of the Act envisages the inspection and control over the universities and it postulates, among other things, that the State Government shall have the right to cause an inspection made by such person or persons as it may direct, of the University or any constituent college or any institute maintained by the University, including its buildings etc. etc. to cause an inquiry made to the like manner in respect of any matters connected with the administration and finances of the university. 7. Section 33 gives power of control over the provident fund etc. of the teaching staff. Section 55(3) obligates the university to prepare annual accounts and the balance sheet duly audited which shall together with he copies of the report be submitted by the Executive Council to the Court and to the State Government. Section 58 gives control to the State Government over the finances as well. Section 55-A gives power to impose surcharge and Section 55(8) gives power to the Government to take action against the erring Vice-Chancellor. It also gives power to have the control over the grants made by the State Government, Government of India or the University Grants Commission or any international organisation or any other fund by the funding authorities. It would thus be clear that the State Government has financial control over the university. 8. It is true that the University is supposed to be autonomous in its management. But the limited question that arises for consideration is : whether the State has control over the funds of the University ? As seen from the above provisions, the State has sufficient control over the funds to be expended by the university. Though the expenditure is to be made by the university, the funds come from the contributions made by various authorities. Under those circumstances, it is a local fund. 9. The further question is : whether the procedure prescribed under Chapter VII should be followed ? It is true that this Court in Valjibhais case (AIR 1963 SC 1890 ) (supra) had held that the State Transport Corporation constituted under the Bombay Transport Corporation Act was a company and the procedure prescribed in Chapter VII was not followed and that, therefore, though the Road Transport Corporation came to be constituted for public transport it is not a public purpose. It is seen that, that decision has no application to the facts in this case. In that case the State Transport Authority came to be constituted under a State enactment which was repealed by the Central Act. The Corporation was not constituted under the Central Act. Under the State statute that continued to be a company and the Government had not contributed any money for the expenditure to be incurred for acquisition. Under those circumstances, this Court came to hold that the acquisition was bad in law. 10. In Talukdars case (AIR 1965 SC 646 ) (supra) a Bench of three Judges of this Court was called upon to consider whether the acquisition of Ramakrishna Mission was for a public purpose without following the procedure prescribed under Section 40 in Chapter VII of the Act. Though the object of the institution was very wide and it intended to propagate religious, social, educational and teaching activities for the benefit of the public, it was held that construction of the staff quarters, play-ground and hostel was not a public purpose. Since the acquisition was for an integral scheme which cannot be separated, the entire notification came to be quashed. The ratio therein also has no application to the facts in this case. Once it is held that the University was duly constituted under the Act, the very object of the establishment of the University is for imparting higher education to the students. Without the buildings to the staff and the students, hostel, playground etc., the object of the establishment of the University cannot be achieved. Under these circumstances, it must be held that the acquisition is for a public purpose. 11. The learned Judges, with due respect, have applied the doctrine of ejusdem generis to the other authority under Section 3(31) of the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to include "any authority", a University must be construed to be any other authority within the meaning of Section 3(31) of the General Clauses Act as applicable to the State of U. P. Therefore, the establishment of a University being by an authority established under the Universities Act, the amount spent from the University fund is a local fund within the meaning of Section 3(31) of the General Clauses Act and that, therefore, there is no need for the State Government again to contribute from its exchequer towards the costs of acquisition of the property. Consequently, the procedure prescribed under Chapter VII of the Act need not be followed.12. It is then contended by Shri Chowdhary that since there was inordinate delay of over 22 years from 1974, it is not a case for interference. We find no force in the contention. As seen when the declaration was published, the appellants had gone to the Court and had the declaration quashed. In view of the fact that the view taken by the High Court was not correct in law, we cannot uphold the quashing of declaration under Section 6. However, the Land Acquisition Officer is directed to conduct and complete the award enquiry within a period of six months from the date of the receipt of this order and then pass appropriate award accordingly. | 1[ds]4. It is not in dispute that the establishment of university and construction of the buildings including staff quarters, hostels,etc. is a public purpose provided if it is done by an authority within the meaning of Section 3(31) of General Clauses Act. The main emphasis of Shri Chowdhary is that unless the authority is one that is analogous to the one like municipality, it would not be a local authority. The State has the control over the local fund held by the municipalities etc., but the funds held or controlled by the university are not under the control of the State Government and that, therefore, unless the procedure prescribed in Chapter VII of the Act is followed, it is not public purpose. We do not find the contention to be acceptable.The learned Judges, with due respect, have applied the doctrine of ejusdem generis to the other authority under Section 3(31) of the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to include "any authority", a University must be construed to be any other authority within the meaning of Section 3(31) of the General Clauses Act as applicable to the State of U. P. Therefore, the establishment of a University being by an authority established under the Universities Act, the amount spent from the University fund is a local fund within the meaning of Section 3(31) of the General Clauses Act and that, therefore, there is no need for the State Government again to contribute from its exchequer towards the costs of acquisition of the property. Consequently, the procedure prescribed under Chapter VII of the Act need not be followed.12. It is then contended by Shri Chowdhary that since there was inordinate delay of over 22 years from 1974, it is not a case for interference. We find no force in the contention. As seen when the declaration was published, the appellants had gone to the Court and had the declaration quashed. In view of the fact that the view taken by the High Court was not correct in law, we cannot uphold the quashing of declaration under Section 6. However, the Land Acquisition Officer is directed to conduct and complete the award enquiry within a period of six months from the date of the receipt of this order and then pass appropriate award accordingly. | 1 | 2,158 | 472 | ### Instruction:
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### Input:
known as the Kashi Vidyapith, Varanasi shall be dissolved, and all property movable and immovable, and rights, powers and privileges of the society shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is established;" 6. Section 8 of the Act envisages the inspection and control over the universities and it postulates, among other things, that the State Government shall have the right to cause an inspection made by such person or persons as it may direct, of the University or any constituent college or any institute maintained by the University, including its buildings etc. etc. to cause an inquiry made to the like manner in respect of any matters connected with the administration and finances of the university. 7. Section 33 gives power of control over the provident fund etc. of the teaching staff. Section 55(3) obligates the university to prepare annual accounts and the balance sheet duly audited which shall together with he copies of the report be submitted by the Executive Council to the Court and to the State Government. Section 58 gives control to the State Government over the finances as well. Section 55-A gives power to impose surcharge and Section 55(8) gives power to the Government to take action against the erring Vice-Chancellor. It also gives power to have the control over the grants made by the State Government, Government of India or the University Grants Commission or any international organisation or any other fund by the funding authorities. It would thus be clear that the State Government has financial control over the university. 8. It is true that the University is supposed to be autonomous in its management. But the limited question that arises for consideration is : whether the State has control over the funds of the University ? As seen from the above provisions, the State has sufficient control over the funds to be expended by the university. Though the expenditure is to be made by the university, the funds come from the contributions made by various authorities. Under those circumstances, it is a local fund. 9. The further question is : whether the procedure prescribed under Chapter VII should be followed ? It is true that this Court in Valjibhais case (AIR 1963 SC 1890 ) (supra) had held that the State Transport Corporation constituted under the Bombay Transport Corporation Act was a company and the procedure prescribed in Chapter VII was not followed and that, therefore, though the Road Transport Corporation came to be constituted for public transport it is not a public purpose. It is seen that, that decision has no application to the facts in this case. In that case the State Transport Authority came to be constituted under a State enactment which was repealed by the Central Act. The Corporation was not constituted under the Central Act. Under the State statute that continued to be a company and the Government had not contributed any money for the expenditure to be incurred for acquisition. Under those circumstances, this Court came to hold that the acquisition was bad in law. 10. In Talukdars case (AIR 1965 SC 646 ) (supra) a Bench of three Judges of this Court was called upon to consider whether the acquisition of Ramakrishna Mission was for a public purpose without following the procedure prescribed under Section 40 in Chapter VII of the Act. Though the object of the institution was very wide and it intended to propagate religious, social, educational and teaching activities for the benefit of the public, it was held that construction of the staff quarters, play-ground and hostel was not a public purpose. Since the acquisition was for an integral scheme which cannot be separated, the entire notification came to be quashed. The ratio therein also has no application to the facts in this case. Once it is held that the University was duly constituted under the Act, the very object of the establishment of the University is for imparting higher education to the students. Without the buildings to the staff and the students, hostel, playground etc., the object of the establishment of the University cannot be achieved. Under these circumstances, it must be held that the acquisition is for a public purpose. 11. The learned Judges, with due respect, have applied the doctrine of ejusdem generis to the other authority under Section 3(31) of the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to include "any authority", a University must be construed to be any other authority within the meaning of Section 3(31) of the General Clauses Act as applicable to the State of U. P. Therefore, the establishment of a University being by an authority established under the Universities Act, the amount spent from the University fund is a local fund within the meaning of Section 3(31) of the General Clauses Act and that, therefore, there is no need for the State Government again to contribute from its exchequer towards the costs of acquisition of the property. Consequently, the procedure prescribed under Chapter VII of the Act need not be followed.12. It is then contended by Shri Chowdhary that since there was inordinate delay of over 22 years from 1974, it is not a case for interference. We find no force in the contention. As seen when the declaration was published, the appellants had gone to the Court and had the declaration quashed. In view of the fact that the view taken by the High Court was not correct in law, we cannot uphold the quashing of declaration under Section 6. However, the Land Acquisition Officer is directed to conduct and complete the award enquiry within a period of six months from the date of the receipt of this order and then pass appropriate award accordingly.
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1
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4. It is not in dispute that the establishment of university and construction of the buildings including staff quarters, hostels,etc. is a public purpose provided if it is done by an authority within the meaning of Section 3(31) of General Clauses Act. The main emphasis of Shri Chowdhary is that unless the authority is one that is analogous to the one like municipality, it would not be a local authority. The State has the control over the local fund held by the municipalities etc., but the funds held or controlled by the university are not under the control of the State Government and that, therefore, unless the procedure prescribed in Chapter VII of the Act is followed, it is not public purpose. We do not find the contention to be acceptable.The learned Judges, with due respect, have applied the doctrine of ejusdem generis to the other authority under Section 3(31) of the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to be like a municipality etc. When the "local authority" was widely defined under the General Clauses Act to include "any authority", a University must be construed to be any other authority within the meaning of Section 3(31) of the General Clauses Act as applicable to the State of U. P. Therefore, the establishment of a University being by an authority established under the Universities Act, the amount spent from the University fund is a local fund within the meaning of Section 3(31) of the General Clauses Act and that, therefore, there is no need for the State Government again to contribute from its exchequer towards the costs of acquisition of the property. Consequently, the procedure prescribed under Chapter VII of the Act need not be followed.12. It is then contended by Shri Chowdhary that since there was inordinate delay of over 22 years from 1974, it is not a case for interference. We find no force in the contention. As seen when the declaration was published, the appellants had gone to the Court and had the declaration quashed. In view of the fact that the view taken by the High Court was not correct in law, we cannot uphold the quashing of declaration under Section 6. However, the Land Acquisition Officer is directed to conduct and complete the award enquiry within a period of six months from the date of the receipt of this order and then pass appropriate award accordingly.
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Hindustan Steel Limited Vs. State of Orissa | SHAH, J.1. By order dated August 4, 1969 [Since reported as Hindustan Steel Ltd. v. State of Orissa [1970] 25 S.T.C. 211], this court called for a supplementary statement of the case on the following points :(1) Whether the company charged any profit apart from storage charges for supplying cement and structural steel; and(2) Whether the difference between the price charged to the contractors and the price paid by the company to its suppliers for bricks was not in respect of storage and other incidental charges.2. The Tribunal has submitted the statement of the case which clearly shows that the company had not charged any profit for supplying cement and structural steel from its contractors to whom those commodities had been supplied. The Tribunal has also held that even though there was a small difference between the cost price to the company and the amount received from the contractors, it was not possible to hold that any profit was intended or made by the company.As we observed in our earlier judgment the contractors were required to pay for cement in bags Rs. 5.94 plus 3 1/2 per cent. storage charges and for structural steel and M.S. rods Rs. 800 plus 3 1/2 per cent. storage charges. It appears that besides the price of steel and cement the company had also charged freight, insurance and handling charges. But those were evidently expenses which were actually incurred by the company and must be regarded as part of the price which the company has to pay. It is clear that the company had made no profit when it supplied cement and structural steel to the contractors.Similarly in the case of bricks, on the evidence the cost price of bricks supplied to the contractors worked out to Rs. 39-8-0 and the company had charged Rs. 40 per thousand. But in working out the average rate of Rs. 39-8-0 the overhead expenditure of management for "work-charged personnel" was to be taken into account and it was not possible to determine the exact transport charges. We agree with the Tribunal that even in respect of the bricks the rate of Rs. 40 per thousand charged by the company did not leave any profit to it. | 1[ds]The Tribunal has submitted the statement of the case which clearly shows that the company had not charged any profit for supplying cement and structural steel from its contractors to whom those commodities had been supplied. The Tribunal has also held that even though there was a small difference between the cost price to the company and the amount received from the contractors, it was not possible to hold that any profit was intended or made by thewe observed in our earlier judgment the contractors were required to pay for cement in bags Rs. 5.94 plus 3 1/2 per cent. storage charges and for structural steel and M.S. rods Rs. 800 plus 3 1/2 per cent. storage charges. It appears that besides the price of steel and cement the company had also charged freight, insurance and handling charges. But those were evidently expenses which were actually incurred by the company and must be regarded as part of the price which the company has to pay. It is clear that the company had made no profit when it supplied cement and structural steel to the contractors.Similarly in the case of bricks, on the evidence the cost price of bricks supplied to the contractors worked out to Rs.and the company had charged Rs. 40 per thousand. But in working out the average rate of Rs.the overhead expenditure of management forpersonnel" was to be taken into account and it was not possible to determine the exact transport charges. We agree with the Tribunal that even in respect of the bricks the rate of Rs. 40 per thousand charged by the company did not leave any profit to it. | 1 | 407 | 297 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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SHAH, J.1. By order dated August 4, 1969 [Since reported as Hindustan Steel Ltd. v. State of Orissa [1970] 25 S.T.C. 211], this court called for a supplementary statement of the case on the following points :(1) Whether the company charged any profit apart from storage charges for supplying cement and structural steel; and(2) Whether the difference between the price charged to the contractors and the price paid by the company to its suppliers for bricks was not in respect of storage and other incidental charges.2. The Tribunal has submitted the statement of the case which clearly shows that the company had not charged any profit for supplying cement and structural steel from its contractors to whom those commodities had been supplied. The Tribunal has also held that even though there was a small difference between the cost price to the company and the amount received from the contractors, it was not possible to hold that any profit was intended or made by the company.As we observed in our earlier judgment the contractors were required to pay for cement in bags Rs. 5.94 plus 3 1/2 per cent. storage charges and for structural steel and M.S. rods Rs. 800 plus 3 1/2 per cent. storage charges. It appears that besides the price of steel and cement the company had also charged freight, insurance and handling charges. But those were evidently expenses which were actually incurred by the company and must be regarded as part of the price which the company has to pay. It is clear that the company had made no profit when it supplied cement and structural steel to the contractors.Similarly in the case of bricks, on the evidence the cost price of bricks supplied to the contractors worked out to Rs. 39-8-0 and the company had charged Rs. 40 per thousand. But in working out the average rate of Rs. 39-8-0 the overhead expenditure of management for "work-charged personnel" was to be taken into account and it was not possible to determine the exact transport charges. We agree with the Tribunal that even in respect of the bricks the rate of Rs. 40 per thousand charged by the company did not leave any profit to it.
### Response:
1
### Explanation:
The Tribunal has submitted the statement of the case which clearly shows that the company had not charged any profit for supplying cement and structural steel from its contractors to whom those commodities had been supplied. The Tribunal has also held that even though there was a small difference between the cost price to the company and the amount received from the contractors, it was not possible to hold that any profit was intended or made by thewe observed in our earlier judgment the contractors were required to pay for cement in bags Rs. 5.94 plus 3 1/2 per cent. storage charges and for structural steel and M.S. rods Rs. 800 plus 3 1/2 per cent. storage charges. It appears that besides the price of steel and cement the company had also charged freight, insurance and handling charges. But those were evidently expenses which were actually incurred by the company and must be regarded as part of the price which the company has to pay. It is clear that the company had made no profit when it supplied cement and structural steel to the contractors.Similarly in the case of bricks, on the evidence the cost price of bricks supplied to the contractors worked out to Rs.and the company had charged Rs. 40 per thousand. But in working out the average rate of Rs.the overhead expenditure of management forpersonnel" was to be taken into account and it was not possible to determine the exact transport charges. We agree with the Tribunal that even in respect of the bricks the rate of Rs. 40 per thousand charged by the company did not leave any profit to it.
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Ram Kumar Patel Vs. State Of U.P | judicial declaration is that it will be deemed to have never existed. The declaration in Shiv Kumar Pathak had the effect of erasing Rule 14(3) as introduced by the 15th Amendment Rules along with the Appendix introduced therein which also stood completely erased and effaced. We are constrained to record this conclusion in light of the undisputed factual position that the insertion of Rule 14(3) by the 15th Amendment Rules led to a situation where original Rule 14 was completely substituted and consequently ceased to exist. The subsequent striking down of the amending rules will not revive the provisions as they stood earlier either at the time of promulgation of the 12th or the 15th Amendment Rules. Presently therefore as the enactment exists there is no revival of the Appendix or Rule 14 as it stood prior to the promulgation of the 12th Amendment Rules. We are therefore of the considered opinion that the 16th Amendment Rules must necessarily fall.?3. Accordingly, we may deal with the matter very briefly. The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981 Rules) have been framed under Section 19 of U.P. Basic Education Act, 1972 (1972 Act). Basic education in the State of Uttar Pradesh is regulated by the 1972 Act. Section 19 of the 1972 Act, provides for rules to determine the qualification for appointment as teachers and conditions of service of teachers of basic schools.4. Rule 8 of the 1981 Rules prescribes the academic qualification for appointment of a teacher. The qualification prescribed is the bachelor?s degree together with the training qualification i.e. Basic Teacher?s Certificate (BTC), Hindustani Teacher?s Certificate, Junior Teachers? Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto. Rule 14 lays down the manner of appointment.5. The 1981 Rules were amended in 2011 by the 12th Amendment. Prior to the amendment, there was a provision for quality points under Rule 14(4) as follows:?(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.?6. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment to the Constitution in the year 2002, regulates elementary education and also deals with the qualification for appointment of teachers under Section 23 of the RTE Act. NCTE constituted under the National Council for Teachers? Education Act, 1993 (NCTE Act) has been prescribed as an ‘academic authority? by the Central Government to lay down the minimum qualification prescribed for appointment of a teacher. Accordingly, Notification dated 23rd August, 2010 has been issued by the NCTE laying down such qualification. Teacher Eligibility Test (TET) is the essential qualification prescribed under the said Notification. However, the guidelines/ Notification dated 11th February, 2011 provided that in the process of appointment of teachers, weightage has to be given to the marks obtained in TET examination.7. As already noted, the State of Uttar Pradesh amended 1981 Rules by 12th Amendment. This was done to comply with the Notification dated 11th February, 2011. However, subsequently there was further amendment. Some of which were challenged before the High Court on the ground of being repugnant to the Central Rule/Notification dated 11th February, 2011. Conflicting views were taken in the judgments of the Allahabad High Court. In Prabhakar Singh versus State of U.P. (2013) 1 ADJ 651 )it was held that weightage to the TET marks laid down in Notification dated 11th February, 2011 was not mandatory. The said judgment was doubted and the matter was referred to a Full Bench. The Full Bench in Shiv Kumar Sharma versus State of U.P. (2013) 6 ADJ 310 )held a different view. It was held that by virtue of power of the Central Government on a subject in Concurrent List, in case of repugnancy, the State rule was required to comply with the disposition in a central legislation. Same view was taken in Shiv Kumar Pathak (supra). Therein, Fifteenth Amendment to the Rules was held to be in conflict with the NCTE Notification dated 11th February, 2011. On the same reasoning, the impugned judgment has struck down the Sixteenth Amendment.8. We have heard learned counsel for the parties.9. Learned counsel for the State of U.P. submitted that there was no conflict in the notifications issued by the NCTE and the amendment in the State Rules. It was submitted that the jurisdiction of the NCTE under Section 23(1) was limited to laying down of qualification as a condition for appointment and the power conferred under the said section did not stipulate regulation of the selection process.10. The NCTE has taken a stand that its notification suggesting weightage to TET marks was not mandatory. The original writ petitioners however support the impugned judgment by submitting that since the issue is covered by Entry 25 List III of the Seventh Schedule to the Constitution, any standard laid down by the Central Government will bind the State and any conflicting decision of the State will be unconstitutional.11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos. 4347-4375 of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy. | 1[ds]11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos.of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy. | 1 | 1,769 | 123 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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judicial declaration is that it will be deemed to have never existed. The declaration in Shiv Kumar Pathak had the effect of erasing Rule 14(3) as introduced by the 15th Amendment Rules along with the Appendix introduced therein which also stood completely erased and effaced. We are constrained to record this conclusion in light of the undisputed factual position that the insertion of Rule 14(3) by the 15th Amendment Rules led to a situation where original Rule 14 was completely substituted and consequently ceased to exist. The subsequent striking down of the amending rules will not revive the provisions as they stood earlier either at the time of promulgation of the 12th or the 15th Amendment Rules. Presently therefore as the enactment exists there is no revival of the Appendix or Rule 14 as it stood prior to the promulgation of the 12th Amendment Rules. We are therefore of the considered opinion that the 16th Amendment Rules must necessarily fall.?3. Accordingly, we may deal with the matter very briefly. The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981 Rules) have been framed under Section 19 of U.P. Basic Education Act, 1972 (1972 Act). Basic education in the State of Uttar Pradesh is regulated by the 1972 Act. Section 19 of the 1972 Act, provides for rules to determine the qualification for appointment as teachers and conditions of service of teachers of basic schools.4. Rule 8 of the 1981 Rules prescribes the academic qualification for appointment of a teacher. The qualification prescribed is the bachelor?s degree together with the training qualification i.e. Basic Teacher?s Certificate (BTC), Hindustani Teacher?s Certificate, Junior Teachers? Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto. Rule 14 lays down the manner of appointment.5. The 1981 Rules were amended in 2011 by the 12th Amendment. Prior to the amendment, there was a provision for quality points under Rule 14(4) as follows:?(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.?6. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment to the Constitution in the year 2002, regulates elementary education and also deals with the qualification for appointment of teachers under Section 23 of the RTE Act. NCTE constituted under the National Council for Teachers? Education Act, 1993 (NCTE Act) has been prescribed as an ‘academic authority? by the Central Government to lay down the minimum qualification prescribed for appointment of a teacher. Accordingly, Notification dated 23rd August, 2010 has been issued by the NCTE laying down such qualification. Teacher Eligibility Test (TET) is the essential qualification prescribed under the said Notification. However, the guidelines/ Notification dated 11th February, 2011 provided that in the process of appointment of teachers, weightage has to be given to the marks obtained in TET examination.7. As already noted, the State of Uttar Pradesh amended 1981 Rules by 12th Amendment. This was done to comply with the Notification dated 11th February, 2011. However, subsequently there was further amendment. Some of which were challenged before the High Court on the ground of being repugnant to the Central Rule/Notification dated 11th February, 2011. Conflicting views were taken in the judgments of the Allahabad High Court. In Prabhakar Singh versus State of U.P. (2013) 1 ADJ 651 )it was held that weightage to the TET marks laid down in Notification dated 11th February, 2011 was not mandatory. The said judgment was doubted and the matter was referred to a Full Bench. The Full Bench in Shiv Kumar Sharma versus State of U.P. (2013) 6 ADJ 310 )held a different view. It was held that by virtue of power of the Central Government on a subject in Concurrent List, in case of repugnancy, the State rule was required to comply with the disposition in a central legislation. Same view was taken in Shiv Kumar Pathak (supra). Therein, Fifteenth Amendment to the Rules was held to be in conflict with the NCTE Notification dated 11th February, 2011. On the same reasoning, the impugned judgment has struck down the Sixteenth Amendment.8. We have heard learned counsel for the parties.9. Learned counsel for the State of U.P. submitted that there was no conflict in the notifications issued by the NCTE and the amendment in the State Rules. It was submitted that the jurisdiction of the NCTE under Section 23(1) was limited to laying down of qualification as a condition for appointment and the power conferred under the said section did not stipulate regulation of the selection process.10. The NCTE has taken a stand that its notification suggesting weightage to TET marks was not mandatory. The original writ petitioners however support the impugned judgment by submitting that since the issue is covered by Entry 25 List III of the Seventh Schedule to the Constitution, any standard laid down by the Central Government will bind the State and any conflicting decision of the State will be unconstitutional.11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos. 4347-4375 of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy.
### Response:
1
### Explanation:
11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos.of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy.
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Shri Girish Vyas & Others Vs. The State of Maharastra & Others | of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities. Operative order with respect to the disputed buildings 157. We have held the direction given by the State Government for the deletion of reservation on Final Plot No.110, and the commencement and occupation certificates issued by the Pune Municipal Corporation in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. As far as the building meant for the tenants is concerned, the developer as well as PMC have indicated that they have no objection to the building being retained. As far as the ten storied building meant for the private sale is concerned, the developer had offered to hand over half the number of floors to PMC, provided it permits the remaining floors to be retained by the developer. PMC has rejected that offer since the plot was reserved for a primary school. The building must therefore be either demolished or put to a permissible use. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money, and in a way could be considered to be far more than the cost of construction of this building. Removal of this building is however not going to be very easy. It will cause serious nuisance to the occupants of the adjoining buildings due to noise and air pollution. The citizens may as well initiate actions against the PMC for appropriate reliefs. It is also possible that the developer may not be able to remove the disputed building within a specified time, in which case the PMC will have to incur the expenditure on removal. It will, therefore, be open to the developer to redeem himself by offering the entire building to PMC for being used as a primary school or for the earmarked purpose, free of cost. If he is so inclined, he may inform PMC that he is giving up his claim on this building also in favour of PMC. 158. The High Court has not specified the time for taking the necessary steps in this behalf. Hence, for the sake of clarity, we direct the developer to inform the PMC within two weeks from today whether he is giving up the claim on the ten storied building named `Sundew Apartments apart from the tenants building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final. 159. As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants. 160. The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We therefore, absolve both of them from paying costs to the original petitioners. The order with respect to payment of cost of Rs. 10,000/- against the then Chief Minister and the Minister of State to each of the original petitioners however remains. Over and above we add Rs. 15,000/- for each of them to pay to the two petitioners separately towards the cost of these appeals in this Court. Thus, the then Chief Minister and the Minister of State shall each pay Rs. 25,000/- to the two petitioners separately. 161. The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorised construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously. The conclusions in nutshell and the consequent order | 0[ds]53. In the instant case the officers of the Urban Development Department as well as of the PMC took the stand (until it was possible), that the procedure under Section 37 will have to be followed. This was because what was contemplated was a modification of a proposal made in the Development Plan. A reservation for an amenity was sought to be shifted (which will in fact mean it was sought to be deleted) from the place where it was provided. If that was the official view of UDD and PMC, what was required was a compliance of the procedure under Section 37(1) and (2). Ultimately, since the direction was given by the State Government, (and if the State Government thought that there was an urgency), it was necessary for it to act under Section 37 (1AA), and to publish a notice in the Official Gazette to invite objections and suggestions from the public at large, and also from the persons affected by the proposed modification. Thereafter the State Government was required to send the proposal to PMC for its say and then it had to consult the Director of Town Planning.Thus the submission canvassed on behalf of the appellants is that although the landowner never objected to the reservation either for a garden or a primary school during the process of the revision of the D.P. Plan during 1982 to 1987, and although he had received the compensation for its acquisition, he retained the right to develop the property for residential purposes merely because under the erstwhile Town Planning scheme residential use was permissible, and it is supposed to be saved under Section 165 (2) of the MRTP Act. However, as seen from the conjoint reading of Section 39, 42 and 46, and the scheme of theAct, such a submission cannot be accepted. That apart, ultimately it was contended on his behalf the deletion of the reservation of a primary school on this plot u/s 37 of the MRTP Act is not necessary, and the order passed by the State Government in his favour can be explained u/s 50 of the MRTP Act read with D.C. Rule 6.6.2.2. As we have seen Section 50 as well as D.C. Rule 6.6.2.2. have no application to the present case, nor can the power of the State Government under Section 154 of the Act help the appellants. Besides, independent of ones right either under the D.P. Plan or the T.P. Scheme, one ought to have a permission for development granted by the planning authority traceable to an appropriate provision of law. In the present case there is none. The appellants are essentially raising all these submissions to justify a construction which is without a valid and legal development permission. The appellants have gone on improving and tried to change their stand from time to time with a view to justify Governments order in their favour. However,are not like old wine becoming better as they growas aptly stated by Krishna Iyer J. in para 8 of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 (1) SCC 405. The submissions of the appellants in defence of the decision of the State Government are devoid of any merit and deserve to be rejected.That apart, there is also the question as to whether the Civil Court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the L.A. Act provides for the entire mechanism as to how acquisition is to be effected, and the remedies to the aggrieved parties. In State of Bihar Vs. Dhirendra Kumar & Ors. reported in 1995 (4) SCC 229 this Court in terms held that since the Act is a complete code, by necessary implication the power of the Civil Court to take cognizance of a case under Section 9 of the CPC stands excluded, and Civil Court had no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable in the present case.The building constructed for the tenants is meant for accommodating them, and it has been stated on behalf of the developer that he is not interested in dis-housing them. The learned senior counsel for PMC Shri R.P. Bhat has also stated on instructions, that PMC has no objection to the retention of the building constructed for the erstwhile occupants of the plot, however these occupants will now have to continue in that building as tenants of PMC. As far as these occupants are concerned, their status at the highest was that of tenants of the landowner. They claim to have been residing on this plot for over fifty years, and appear to be belonging to economically weaker section of the society. Their only request during the acquisition proceedings was that they should be accommodated on this very plot of land. It is another matter that in the High Court and in this Court they supported the landowner and the developer, in view of the promise given to them that in the event the landowner and the developer succeed, the tenants will get ownership rights. Now that the plea of the landowner and the developer is rejected, the best that can happen to these occupants is to get the tenancy rights on this very plot of land. That apart, in view of their long stay on this plot, they had to be rehabilitated. The offer of PMC to accommodate them on the very plot of land is more than fair, and deserves acceptance. Since, the tenants were already in possession of a part of the plot for residential purpose, they are being continued to remain on that plot for that very purpose. In that event, the tenants may not be entitled to receive any monetary compensation since this offer is as per their original demand and it very much compensates them. However, since the amount of compensation awarded to them was too meagre, if they have collected it, they need not return the same to PMC. This being the position, in our view, the main operative order passed by the High Court needs to be modified appropriately. In the circumstances, we modify and restrict the operative order of demolition only to the extent it directs the removal / demolition of the building meant for the persons other than these tenants (i.e. the ten storey building named as Sundew Apartments).114. We may as well mention at this stage that as far as this building viz. Sundew Apartments is concerned, no one, except a bank had come forward to claim any third party rights, or prejudice on account of the order of demolition passed by the High Court in spite of the well publicised litigation of this matter. The concerned bank had advanced a loan to the developer against the security of two flats in that building, and it intervened only at the last stage of passing of the order. The Division Bench has rightly rejected the claim of the bank in paragraphs 224 to 226 of its judgment by observing that the court could not accept the contention of the bank that it was not aware of the illegality on the part of the developer. The court did not accept the banks plea of innocently advancing the money, since the mortgage was executed on 13.8.1998, whereas the allegations concerning the illegality of this transaction had appeared in the newspapers right from March 1998. The bank should have considered the matter in depth before advancing the loan. In any case the demolition will only extinguish its security though its claim against the developer may remain. Adverse remarks, and the direction for criminal investigation115. The second part of the operative order in the impugned judgment was based on the adverse inferences drawn by the Division Bench against the then Chief Minister, the Minister of State and the Municipal Commissioner. The petitioners had infact sought a prosecution against all of them. However, after considering the facts and circumstances of the case the court was not inclined to grant that relief, without appropriate prior investigation.As far as the Chief Minister is concerned, however, it is very clear that he was fully aware about the application made by Shri Karandikar who was a camouflage for his son-in-law. He had called for the file after the Municipal Commissioner sent his report in April, 1996. But for his personal interest, the Government and the Municipal officers would not have taken the stand and put up the notes that he wanted to be on record. The shifting of the reservation from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of the Municipal Corporation and ignoring the mandate of Section 37 was also not expected, yet he gaveto a contrary and totally unjustified order. The earlier part of his order viz.action be taken in accordance withtherefore becomes meaningless, and is nothing but a camouflage. The conduct on the part of the then Chief Minister prima-facie amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for the original petitioners submits that such a conduct ought to be sternly dealt with. | 0 | 47,340 | 1,713 | ### Instruction:
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of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities. Operative order with respect to the disputed buildings 157. We have held the direction given by the State Government for the deletion of reservation on Final Plot No.110, and the commencement and occupation certificates issued by the Pune Municipal Corporation in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. As far as the building meant for the tenants is concerned, the developer as well as PMC have indicated that they have no objection to the building being retained. As far as the ten storied building meant for the private sale is concerned, the developer had offered to hand over half the number of floors to PMC, provided it permits the remaining floors to be retained by the developer. PMC has rejected that offer since the plot was reserved for a primary school. The building must therefore be either demolished or put to a permissible use. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money, and in a way could be considered to be far more than the cost of construction of this building. Removal of this building is however not going to be very easy. It will cause serious nuisance to the occupants of the adjoining buildings due to noise and air pollution. The citizens may as well initiate actions against the PMC for appropriate reliefs. It is also possible that the developer may not be able to remove the disputed building within a specified time, in which case the PMC will have to incur the expenditure on removal. It will, therefore, be open to the developer to redeem himself by offering the entire building to PMC for being used as a primary school or for the earmarked purpose, free of cost. If he is so inclined, he may inform PMC that he is giving up his claim on this building also in favour of PMC. 158. The High Court has not specified the time for taking the necessary steps in this behalf. Hence, for the sake of clarity, we direct the developer to inform the PMC within two weeks from today whether he is giving up the claim on the ten storied building named `Sundew Apartments apart from the tenants building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final. 159. As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants. 160. The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We therefore, absolve both of them from paying costs to the original petitioners. The order with respect to payment of cost of Rs. 10,000/- against the then Chief Minister and the Minister of State to each of the original petitioners however remains. Over and above we add Rs. 15,000/- for each of them to pay to the two petitioners separately towards the cost of these appeals in this Court. Thus, the then Chief Minister and the Minister of State shall each pay Rs. 25,000/- to the two petitioners separately. 161. The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorised construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously. The conclusions in nutshell and the consequent order
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the award was rendered. This is because when it comes to acquisition, the L.A. Act provides for the entire mechanism as to how acquisition is to be effected, and the remedies to the aggrieved parties. In State of Bihar Vs. Dhirendra Kumar & Ors. reported in 1995 (4) SCC 229 this Court in terms held that since the Act is a complete code, by necessary implication the power of the Civil Court to take cognizance of a case under Section 9 of the CPC stands excluded, and Civil Court had no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable in the present case.The building constructed for the tenants is meant for accommodating them, and it has been stated on behalf of the developer that he is not interested in dis-housing them. The learned senior counsel for PMC Shri R.P. Bhat has also stated on instructions, that PMC has no objection to the retention of the building constructed for the erstwhile occupants of the plot, however these occupants will now have to continue in that building as tenants of PMC. As far as these occupants are concerned, their status at the highest was that of tenants of the landowner. They claim to have been residing on this plot for over fifty years, and appear to be belonging to economically weaker section of the society. Their only request during the acquisition proceedings was that they should be accommodated on this very plot of land. It is another matter that in the High Court and in this Court they supported the landowner and the developer, in view of the promise given to them that in the event the landowner and the developer succeed, the tenants will get ownership rights. Now that the plea of the landowner and the developer is rejected, the best that can happen to these occupants is to get the tenancy rights on this very plot of land. That apart, in view of their long stay on this plot, they had to be rehabilitated. The offer of PMC to accommodate them on the very plot of land is more than fair, and deserves acceptance. Since, the tenants were already in possession of a part of the plot for residential purpose, they are being continued to remain on that plot for that very purpose. In that event, the tenants may not be entitled to receive any monetary compensation since this offer is as per their original demand and it very much compensates them. However, since the amount of compensation awarded to them was too meagre, if they have collected it, they need not return the same to PMC. This being the position, in our view, the main operative order passed by the High Court needs to be modified appropriately. In the circumstances, we modify and restrict the operative order of demolition only to the extent it directs the removal / demolition of the building meant for the persons other than these tenants (i.e. the ten storey building named as Sundew Apartments).114. We may as well mention at this stage that as far as this building viz. Sundew Apartments is concerned, no one, except a bank had come forward to claim any third party rights, or prejudice on account of the order of demolition passed by the High Court in spite of the well publicised litigation of this matter. The concerned bank had advanced a loan to the developer against the security of two flats in that building, and it intervened only at the last stage of passing of the order. The Division Bench has rightly rejected the claim of the bank in paragraphs 224 to 226 of its judgment by observing that the court could not accept the contention of the bank that it was not aware of the illegality on the part of the developer. The court did not accept the banks plea of innocently advancing the money, since the mortgage was executed on 13.8.1998, whereas the allegations concerning the illegality of this transaction had appeared in the newspapers right from March 1998. The bank should have considered the matter in depth before advancing the loan. In any case the demolition will only extinguish its security though its claim against the developer may remain. Adverse remarks, and the direction for criminal investigation115. The second part of the operative order in the impugned judgment was based on the adverse inferences drawn by the Division Bench against the then Chief Minister, the Minister of State and the Municipal Commissioner. The petitioners had infact sought a prosecution against all of them. However, after considering the facts and circumstances of the case the court was not inclined to grant that relief, without appropriate prior investigation.As far as the Chief Minister is concerned, however, it is very clear that he was fully aware about the application made by Shri Karandikar who was a camouflage for his son-in-law. He had called for the file after the Municipal Commissioner sent his report in April, 1996. But for his personal interest, the Government and the Municipal officers would not have taken the stand and put up the notes that he wanted to be on record. The shifting of the reservation from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of the Municipal Corporation and ignoring the mandate of Section 37 was also not expected, yet he gaveto a contrary and totally unjustified order. The earlier part of his order viz.action be taken in accordance withtherefore becomes meaningless, and is nothing but a camouflage. The conduct on the part of the then Chief Minister prima-facie amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for the original petitioners submits that such a conduct ought to be sternly dealt with.
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M/s. Ujagar Prints Vs. Union of India & Others | goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from postmanufacturing operation ... .It may be noted that wholesale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In fact the more common and less expensive the goods, there would be greater possibility of more than one tier of wholesale transactions .. . . If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case. Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. 73. Explaining what really is the idea of "post-manufacturing profit" referred to in Atic case this court in Union of India v. Bombay Tyre International Ltd. said : When it refers to post-manufacturing expenses and post-manufacturing profit arising from post-manufacturing operations, it clearly intends to refer not to the expenses and profits pertaining to the sale transactions effected by the manufacturer but to those pertaining to the subsequent sale transactions effected by the wholesale buyers in favour of other dealers. (emphasis supplied) The principles for the determination of assessable value are laid down under S. 4 of the Act. S. 4 of the Central Excise Act envisages that the value of an article for the purposes of duty shall be deemed to be ; (a) The wholesale cash price for which an article of the like kind and quality was sold or was capable of being sold at the time of removal of the article from the factory or premises of manufacture for delivery at the place of manufacture or ; (ft) Where such price was not ascertainable, the price at which an article of the like kind and quality was sold or capable of being sold at the time of removal of the article chargeable with duty.74. The nature of the excise duty is not to be confused with, or tested with reference to, the measure by which the tax is assessed. The standard adopted as the measure of assessment may throw light on the nature of the levy but is not determinative of it. When a statutory measure for assessment of the tax is contemplated, it "need not contour along the lines which spell out the levy itself", and "a broader based standard of reference may be adopted for the purposes of determining the measure of the levy". Any statutory standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the tax.75. In the case of processing houses, they become liable to pay excise duty not because they are the owners of the goods but because they cause the manufacture of the goods. The dimensions of S. 4(l)(a) and (b) are fully explored in a number of decisions of this court. Reference may be made to the case of Bombay Tyres International.76. Consistent with the provisions of S. 4 and the central Excise (Valuation) Rules, 1975, framed under S. 37 of the Act, it cannot be said that the assessable value of the processed fabric should comprise only of the processing charges. This extreme contention if accepted, would lead to and create more problems than it is supposed to solve ; and produce situations which could only be characterised as anomalous. The incidence of the levy should be uniform, uninfluenced by fortuitous considerations. The method of determination of the assessable value suggested by the processors would lead to the untenable position that while in one class of grey fabric processed by the same processor on bailment, the assessable value would have to be determined differently dependent upon the consideration that the processing house had carried out the processing operations on job work basis, in the other class of cases, as it not unoften happens, the goods would have to be valued differently only for the reason the same processing house has itself purchased the grey fabric and carried out the processing operations on its own.77. It is to solve the problem arising out of the circumstance that goods owned by one person are "manufactured" by another that at a certain stage under Rule 174-A, a notification was issued by the central government exempting from the operation of the Rule 174-A ". ... every manufacturer who gets his goods manufactured account on his from any other person, subject to the conditions that the said manufacturer authorises the person, who actually manufactures or fabricates the said goods to comply with all procedural formalities under the central Excises and Salt Act, 1944 (1 of 1944 and the rules made thereunder, in respect of the goods manufactured on behalf of the said manufacturer and, in order to enable the determination of value of the said goods under S. 4 of the said Act, to furnish information relating to the price at which the said manufacturer is selling the said goods and the person so authorised agrees to discharge all liabilities under the said Act and the rules made thereunder." On a consideration of the matter, the view taken in the matter in the Empire Industries case does not call for reconsideration. Contention (c) is also held and answered against the petitioner. | 1[ds]38. We have carefully considered these submissions. In the Empire Industries case ((1985) 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292), this Court considered similar submissions in an almost identical context and situation. Learned Judges referred to the observations of this Court in CST v. Harbilas Rai & Sons (21 STC 17 (SC)), in which the view expressed by the Division Bench of the Madhya Pradesh High Court in Hiralal Jitmal v. CST (8 STC 325, 326 (MP HC)) was held supportable on the reasoning that : (quoted at SCC p. 330, paradecision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed.The Division Bench also referred to, with approval, the decision of the Bombay High Court in Kores (India) Limited v. Union of India (8 STC 325, 326 (MP HC)). The Division Bench noticed the question arising for decision : (SCC p. 331, paraitself means woven materials. It was contended that processing the manufactured fabric does not bring into existence any new woven material but the question is : does new and different goods emerge having a distinctive name, use and characterAnswering the bench said : (SCC p. 334, paraappears in the light of the several decisions and on the construction of the expression that the process of bleaching, dyeing and printing etymologically also means manufacturingThe prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes. The principles are clear. But difficulties arise in their application in individual cases. There might be borderline cases where either conclusion with equal justification be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, we are afraid, results in an oversimplification of both and tends to blur their interdependence in cases such as the present one. The correctness of the view in Empire Industries case ((1985) 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292) cannot be tested in the light of material - in the form of affidavits expressing the opinion of persons said to be engaged in or connected with the textile trade as to the commercial identity of the commodities before and after the processing - placed before the court in a subsequent case. These opinions are, of course, relevant and would be amongst the various factors to be taken into account in deciding the question.43. On a consideration of the matter, we are persuaded to think that the view taken in Empire Industries case ((1985) 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292) that grey fabric after they undergo the various processes of bleaching, dyeing, sizing, printing, finishing etc. emerges as a commercially different commodity with its own price structure, custom and other commercial incidents and that there was in that sense a manufacture within the meaning of Section 2(f), even as unamended, is an eminently plausible view and is not shown to suffer from any fallacy. Indeed, on this point, the Referring Bench did not disagree or have any reservations either. It is to be noticed that if the amending law is valid, this aspect becomes academic.44. We think, we should reject contention (a).In Empire Industries ((1985) 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292) case a similar argument was urged but without success. Learned Judges were persuaded to the view that such processes which were referred to by the amendment were not so alien or foreign to the concept of manufacture that they could not come within that concept.48. Entries in the legislative lists, it must be recalled, are not sources of legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "Pith and Substance" in the understanding of the exertion of legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic.49. In Empire Industries case ((1985 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292), it was held : (SCC p. 339, parahas been noted, processes of the type which have been incorporated by the impugned Act were not so alien or foreign to the concept of manufacture that these could not come within that concept.At all events, even if the impost on process is not one under entry 84, List I, but is an impost on "processing" distinct from "manufacture" the levy could yet be supported by entry 97, List I, even without the aid of the wider principle recognised and adopted in Dhillon case (Union of India v. H. S. Dhillon, (1971) 2 SCC 779 : AIR 1972 SC 1061 : (1972) 83 ITR 582 ). It was, however, contended that the levy of tax on an activity which cannot reasonably be regarded as an activity of manufacture cannot be described as a levy of duties of excise under entry 84, List I. If it is a nondescript tax under entry 97, Parliament, it is urged, has not chosen to enact any such law in this case. The charging section does not, it is urged, bring such a taxable event to charge. This argument was noticed in Empire Industries case (1985 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292) thus : (SCC p. 340, para 47)It was then argued that if the legislation was sought to be defended on the ground that it is a tax on an activity like processing and would be covered by the powers enumerated under entry 97 of List I of the Seventh Schedule then it was submitted that there was no charging section for such an activity and as such the charge must fail, and there cannot be any levy.51. The contention was rejected holding : (SCC p. 340, paraargument proceeds on an entire misconception. The charging section is the charging Section 3 of the Central Excises and Salt Act, 1944. It stipulates the levy and charge of duty of excise on all excisable goods produced or manufactured. "Manufactured" under the Act after the amendment would be manufacture as amended in Section 2(f) and tariff items 19-I and 22 the charge would be on that basis. Therefore it is difficult to appreciate the argument that the levy would fail as their will be no appropriate charging section or machinery for effectuating the levy on the activity like the method of processing even if such an activity can be justified under entry 97 of List I of the Seventh Schedule. We are, therefore, of the opinion that there is no substance in this contention.We respectfully agree.53. If a legislation purporting to be under a particular legislative entry is assailed for lack of legislative competence, the State can seek to support it on the basis of any other entry within the legislative competence of the legislature. It is not necessary for the State to show that the legislature, in enacting the law, consciously applied its mind to the source of its own competence. Competence to legislate flows Articles from Articles 245, 246, and the other articles following, in Part XI of the Constitution. In defending the validity of a law questioned on ground of legislative incompetence, the State can always show that the law was supportable under any other entry within the competence of the legislature. Indeed in supporting a legislation sustenance could be drawn and had from a number of entries. The legislation could be a composite legislation drawing upon several entries. Such a "ragbag" legislation particularly familiar inHari Krishna Bhargav v. Union of India ((1966) 2 SCR 22 : AIR 1966 SC 619 : (1966) 59 ITR 243 ), this Court said : (SCR p.is no prohibition against the Parliament enacting in a single statute, matters which call for the exercise of power under two or more entries in List I of the Seventh Schedule. Illustrations of such legislation are not wanting in our statute book, and the fact that one of such entries is the residuary entry does not also attract any disability.So far as the exclusive competence of the Union Parliament to legislate is concerned all that is necessary is to find out whether the particular topic of legislation is in List II or List III. If it is not, it is not necessary to go any further or search for the field in List I. Union Parliament has exclusive power to legislate upon that topic or field. Of course, it has concurrent power also in respect of the subjects in List III.56. Contention (b) is, therefore, insubstantial.This pertains to the validity of levy of additional duties. The contention proceeds on the presupposition that processing does not amount to manufacture under Section 3(1) of the Additional Duties Act. If it does, as has been held on point (a), this argument does not survive at all.The contention was neatly and attractively presented and appeared, at first blush, to merit a serious consideration of the validity of the levy of additional duties. But on a closer examination of the concept of, and the scheme for, levy and collection of the additional duties and the specific statutory provisions, the tensile strength of the argument breaks down. There are at least two circumstances which render the definition of manufacture under Section 2(f) attracted to the additional levies. Section 3(3) of the Additional Duties Act provides levy and collection of the additional duties as they apply in relation to the levy and collection of the duties of excise on the goods specified in sub-section (1).It is plain that the statute expressly makes the provision in the "Central Excises Act" apply in relation to levy and collection of the additional duties. The question is whether this provision is sufficient to attract Section 2(f) of the main Act as amended. This, in turn, depends upon what the expression "levy" connotes and carries with it. The term levy it is held, is an expression of wide impart. It includes both imposition of a tax as well as its quantification and assessment. In Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd ((1972) 2 SCC 560 : (1973) 1 SCR 822 , 835). this Court held : (SCC p. 572, para 19)The term "levy" appears to us to be wider in its import than the term "assessment". It may include both "imposition" of a tax as well as assessment. The term "imposition" is generally used for the levy of a tax or duty by legislative provisions indicating the subject matter of the tax and the rates at which it has to be taxed.62. That apart, Section 4 of the Amending Act 6 of 1980 has amended the relevant items in the schedule to the Additional Duties Act. The expressions produce or manufacture in Section 3(1) of the Additional Duties Act must be read along with the entries in theSchedule must be attached to the body of the Act by words in one of the sections (known as inducing words). It was formerly the practice for the inducing words to say that the Schedule was to be construed and have effect as part of the Act. (See e.g., Ballot Act, 1872, Section 28.) This is no longer done, being regarded as unnecessary. If by mischance the inducing words were omitted, the Schedule would still form part of the Act if that was the apparent intentionThe Schedule is as much a part of the statues, and is as much an enactment, as any other part. (See also, to the like effect, Flower Freight Co. Ltd. v. Hammond ((1963) 1 QB 275), R. v. Legal Aid Committee No. 1 (London) Legal Aid Area, ex p. Rondel ((1967) 2 QB 482) Metropolitan Police Commr. v. Curran ((1976) 1 WLR 87).64. What appears, therefore, clear is that what applies to the main levy, applies to the additional duties as well. We find no substance in contention (c) either.There is really no substance in the grievance that the retroactivity imparted to the amendments is violative of Article 19(1)(g). A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature - granting legislative competence - the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which the earlier judgment becomes irrelevant. (See Shri Prithvi Cotton Mills Ltd. Broach Borough Municipality ((1969) 2 SCC 283 : (1970) 1 SCR 388 (1971) 79 ITR 136) ).66. Such legislative experience of validation of laws is of particular significance and utility and is quite often applied, in taxing statues. It is necessary that the legislature should be able to cure defects in statues. No individual can acquire a vested right from a defect in a defect in a statute and seek a windfall from the legislatures mistakes. Validity of legislations retroactively curing defects in taxing statues is well recognised and courts, except under extraordinary circumstances, would be reluctant to override the legislative judgment as to the need for and the wisdom of the retrospective legislation. In Empire Industries Ltd. v. Union of India ((1985) 3 SCC 314 : 1985 SCC (Tax) 416 : 1985 Supp 1 SCR 292), this Court observed : (SCR p. 327 : SCC p. 342, para 51)not only because of the paramount governmental interest in obtaining adequate revenues, but also because taxes are not in the nature of a penalty or a contractual obligation but rather a means of apportioning the costs of government amongst those who benefit from it.In testing whether a retrospective imposition of a tax operates so harshly as to violate fundamental rights under Article 19(1)(g), the factors considered relevant include the context in which retroactivity was contemplated such as whether the law is one of validation of a taxing statute struck down by courts for certain defects; the period of such retroactivity, and the degree and extent of any unforeseen or unforeseeable financial burden imposed for the past period etc. Having regard to all the circumstances of the present case, this court in Empire Industries case held that the retroactivity of the amending provisions was not such as to incur any infirmity under Article 19(l)(g). We are in respectful agreement with that view.67. There is no merit in contention (d) either.Duties of excise are imposed on the production or manufacture of goods and are levied upon the manufacturer or the producer in respect of the commodity taxed. The question whether the producer or the manufacturer is or is not the owner of the goods is not determinative of the liability. The essential and conceptual nature of the tax is to be kept clearly distinguished from both the extent of the power to impose and the stage at which the tax is imposed. Though the levy is on the production or manufacture of the goods, the imposition of the duty could be at the stage which the law considers most convenient to impose as long as a rational relationship with the nature of the tax is maintained.This contention was considered in detail in Empire Industries case wherein it was heldthe textile fabrics are subjected to the processes like bleaching, dyeing and printing etc. by independent processes, whether on their own account or on job charges basis, the value for the purposes of assessment under S. 4 of the central Excise Act will not be the processing charges alone but the intrinsic value of the processed fabrics which is the price at which such fabrics are sold for the first time in the wholesale market. That is the effect of S. 4 of the Act. The value would naturally include the value of grey fabrics supplied to the independent processors for the processing. However, excise duty, if any, paid on the grey fabrics will be given pro forma credit to the independent processors to be utilised for the payment on the processed fabrics in accordance with the Rules 56-A or 96-D of the central Excise Rules, as the case maythe Referring bench did not doubt the correctness of the inclusion in the assessable value the cost of the grey fabric and the processing charges. The Referring bench heldcannot accept the contention of the learned counsel on behalf of the petitioners and the appellants that the value of the grey cloth which is processed by the processor should not be included in the assessable value of the processed fabric . . . . .Explaining what really is the idea of "post-manufacturing profit" referred to in Atic case this court in Union of India v. Bombay Tyre International Ltd. saidit refers to post-manufacturing expenses and post-manufacturing profit arising from post-manufacturing operations, it clearly intends to refer not to the expenses and profits pertaining to the sale transactions effected by the manufacturer but to those pertaining to the subsequent sale transactions effected by the wholesale buyers in favour of other dealers. (emphasisprinciples for the determination of assessable value are laid down under S. 4 of the Act. S. 4 of the Central Excise Act envisages that the value of an article for the purposes of duty shall be deemed to be ; (a) The wholesale cash price for which an article of the like kind and quality was sold or was capable of being sold at the time of removal of the article from the factory or premises of manufacture for delivery at the place of manufacture or ; (ft) Where such price was not ascertainable, the price at which an article of the like kind and quality was sold or capable of being sold at the time of removal of the article chargeable with duty.74. The nature of the excise duty is not to be confused with, or tested with reference to, the measure by which the tax is assessed. The standard adopted as the measure of assessment may throw light on the nature of the levy but is not determinative of it. When a statutory measure for assessment of the tax is contemplated, it "need not contour along the lines which spell out the levy itself", and "a broader based standard of reference may be adopted for the purposes of determining the measure of the levy". Any statutory standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the tax.75. In the case of processing houses, they become liable to pay excise duty not because they are the owners of the goods but because they cause the manufacture of the goods. The dimensions of S. 4(l)(a) and (b) are fully explored in a number of decisions of this court. Reference may be made to the case of Bombay Tyres International.76. Consistent with the provisions of S. 4 and the central Excise (Valuation) Rules, 1975, framed under S. 37 of the Act, it cannot be said that the assessable value of the processed fabric should comprise only of the processing charges. This extreme contention if accepted, would lead to and create more problems than it is supposed to solve ; and produce situations which could only be characterised as anomalous. The incidence of the levy should be uniform, uninfluenced by fortuitous considerations. The method of determination of the assessable value suggested by the processors would lead to the untenable position that while in one class of grey fabric processed by the same processor on bailment, the assessable value would have to be determined differently dependent upon the consideration that the processing house had carried out the processing operations on job work basis, in the other class of cases, as it not unoften happens, the goods would have to be valued differently only for the reason the same processing house has itself purchased the grey fabric and carried out the processing operations on its own.77. It is to solve the problem arising out of the circumstance that goods owned by one person are "manufactured" by another that at a certain stage under Rule 174-A, a notification was issued by the central government exempting from the operation of the Rule... every manufacturer who gets his goods manufactured account on his from any other person, subject to the conditions that the said manufacturer authorises the person, who actually manufactures or fabricates the said goods to comply with all procedural formalities under the central Excises and Salt Act, 1944 (1 of 1944 and the rules made thereunder, in respect of the goods manufactured on behalf of the said manufacturer and, in order to enable the determination of value of the said goods under S. 4 of the said Act, to furnish information relating to the price at which the said manufacturer is selling the said goods and the person so authorised agrees to discharge all liabilities under the said Act and the rules madea consideration of the matter, the view taken in the matter in the Empire Industries case does not call for reconsideration. Contention (c) is also held and answered against theIn the argument, as presented, that the assessable value would include what is referred to as the "post-manufacturing profits", there is an obvious fallacy. In Atlc Industries Ltd. v. H. H. Dave, Assistant Collector of central Excise" Bhagwati, J. speaking for the court saidvalue of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from postmanufacturing operation ... .It may be noted that wholesale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In fact the more common and less expensive the goods, there would be greater possibility of more than one tier of wholesale transactions .. . . If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case. Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise.g what really is the idea of "post-manufacturing profit" referred to in Atic case this court in Union of India v. Bombay Tyre International Ltd. saidt refers to post-manufacturing expenses and post-manufacturing profit arising from post-manufacturing operations, it clearly intends to refer not to the expenses and profits pertaining to the sale transactions effected by the manufacturer but to those pertaining to the subsequent sale transactions effected by the wholesale buyers in favour of other dealers. (emphasisReferential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re-enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. Examples of this can be seen in secretary of State v. Hindustan Cooperative Insurance Society, Bolani Ores Ltd. v. State of Orissa, Mahindra and Mahindra Ltd. v. Union of India. On the other hand, the later statute may not incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bhajiya v. Gopikabai, or contain a general reference to the terms of an earlier statute which are to be made applicable.96. In this case any modification, repeal or re-enactment of the earlier statute will also be carried into in the later, for here, the idea is that certain provisions of an earlier statute which become applicable in certain circumstances are to be made use of for the purpose of the later Act also. Examples of this type of legislation are to be seen in Collector of Customs v. Nathella Sampathu Chett, New central Jute Mills Co. Ltd. v. Assistant Collector of central Excise and Special Land Acquisition Officer v. City Improvement Trust. Whether a particular statute falls into the first or second category is always a question of construction. In the present case, in my view, the legislation falls into the second category. S. 3(3 of the 1957 Act does not incorporate into the 1957 Act any specific provisions of the 1944 Act. It only declares generally that the provisions of the 1944 Act shall apply -So far as may be", that is, to the extent necessary and practical, for the purposes of the 1957 Act as well.97. That apart, it has been held, even when a specific provision is incorporated and the case apparently falls in the first of the above categories, that the rule that repeals, modifications or amendments of the earlier Act will have to be ignored is not adhered to in certain situations. These have been set out in State of Madhya Pradesh v. M. V. Narasimhan. In that case, the Supreme court was considering the question whether the amendment of S. 21 of the Penal Code by the Criminal Law Amendment Act, 1958, was also applicable for purposes of the Prevention of Corruption Act, 1947, which by S. 2 incorporates, for the purposes of that Act, the definition of public servant in S. 21 of the Penal Code. Answering the question in the affirmative, the court outlined the following propositionsa subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia ;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual ; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.The present case falls within the scope of these exceptions, even if S. 3(3 is construed as incorporating certain specific provisions of the 1944 into itself. The legislation presently in question is clearly in pari materia with the 1944 Act. It is also merely supplemental. While the 1944 Act imposes a general levy of excise duty on all goods manufactured and produced, the aim of the present Act is to supplement the levy by an additional duty of the same nature on certain goods. The duration of the applicability is undefined but the statute is clearly enforceable as long as it is in the statute book side by side with the normal excise duties. The clear intention is that the same provisions shall govern both the levies except that the duty under the later Act is confined to certain goods only and its distributability among the States may perhaps follow a different pattern from the principal duty.99. There is no reason or logic why all the incidents attaching under the earlier legislation, insofar as they are not clearly inconsistent with the later one should not be extended to the later legislation as well. As has been pointed out earlier, the Finance Acts which levied special or regular or additional excise duties contained in themselves all the elements of charge of duty. The goods were mentioned and the duty as to be levied either at a percentage of the normal excise duty payable under the 1944 Act or at a percentage of the value of the assessable goods as determined under the 1944 Act. All that was further needed was the applicability of the procedural provisions of the 1944 Act. Here, however, the 1957 Act is incomplete as to the basis of the charge and its provisions would become totally unworkable unless the concepts of "manufacture" and "assessable value" as determined under the 1944 Act are carried into it. | 1 | 14,187 | 5,566 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from postmanufacturing operation ... .It may be noted that wholesale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In fact the more common and less expensive the goods, there would be greater possibility of more than one tier of wholesale transactions .. . . If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case. Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. 73. Explaining what really is the idea of "post-manufacturing profit" referred to in Atic case this court in Union of India v. Bombay Tyre International Ltd. said : When it refers to post-manufacturing expenses and post-manufacturing profit arising from post-manufacturing operations, it clearly intends to refer not to the expenses and profits pertaining to the sale transactions effected by the manufacturer but to those pertaining to the subsequent sale transactions effected by the wholesale buyers in favour of other dealers. (emphasis supplied) The principles for the determination of assessable value are laid down under S. 4 of the Act. S. 4 of the Central Excise Act envisages that the value of an article for the purposes of duty shall be deemed to be ; (a) The wholesale cash price for which an article of the like kind and quality was sold or was capable of being sold at the time of removal of the article from the factory or premises of manufacture for delivery at the place of manufacture or ; (ft) Where such price was not ascertainable, the price at which an article of the like kind and quality was sold or capable of being sold at the time of removal of the article chargeable with duty.74. The nature of the excise duty is not to be confused with, or tested with reference to, the measure by which the tax is assessed. The standard adopted as the measure of assessment may throw light on the nature of the levy but is not determinative of it. When a statutory measure for assessment of the tax is contemplated, it "need not contour along the lines which spell out the levy itself", and "a broader based standard of reference may be adopted for the purposes of determining the measure of the levy". Any statutory standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the tax.75. In the case of processing houses, they become liable to pay excise duty not because they are the owners of the goods but because they cause the manufacture of the goods. The dimensions of S. 4(l)(a) and (b) are fully explored in a number of decisions of this court. Reference may be made to the case of Bombay Tyres International.76. Consistent with the provisions of S. 4 and the central Excise (Valuation) Rules, 1975, framed under S. 37 of the Act, it cannot be said that the assessable value of the processed fabric should comprise only of the processing charges. This extreme contention if accepted, would lead to and create more problems than it is supposed to solve ; and produce situations which could only be characterised as anomalous. The incidence of the levy should be uniform, uninfluenced by fortuitous considerations. The method of determination of the assessable value suggested by the processors would lead to the untenable position that while in one class of grey fabric processed by the same processor on bailment, the assessable value would have to be determined differently dependent upon the consideration that the processing house had carried out the processing operations on job work basis, in the other class of cases, as it not unoften happens, the goods would have to be valued differently only for the reason the same processing house has itself purchased the grey fabric and carried out the processing operations on its own.77. It is to solve the problem arising out of the circumstance that goods owned by one person are "manufactured" by another that at a certain stage under Rule 174-A, a notification was issued by the central government exempting from the operation of the Rule 174-A ". ... every manufacturer who gets his goods manufactured account on his from any other person, subject to the conditions that the said manufacturer authorises the person, who actually manufactures or fabricates the said goods to comply with all procedural formalities under the central Excises and Salt Act, 1944 (1 of 1944 and the rules made thereunder, in respect of the goods manufactured on behalf of the said manufacturer and, in order to enable the determination of value of the said goods under S. 4 of the said Act, to furnish information relating to the price at which the said manufacturer is selling the said goods and the person so authorised agrees to discharge all liabilities under the said Act and the rules made thereunder." On a consideration of the matter, the view taken in the matter in the Empire Industries case does not call for reconsideration. Contention (c) is also held and answered against the petitioner.
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referred to in Atic case this court in Union of India v. Bombay Tyre International Ltd. saidt refers to post-manufacturing expenses and post-manufacturing profit arising from post-manufacturing operations, it clearly intends to refer not to the expenses and profits pertaining to the sale transactions effected by the manufacturer but to those pertaining to the subsequent sale transactions effected by the wholesale buyers in favour of other dealers. (emphasisReferential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re-enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. Examples of this can be seen in secretary of State v. Hindustan Cooperative Insurance Society, Bolani Ores Ltd. v. State of Orissa, Mahindra and Mahindra Ltd. v. Union of India. On the other hand, the later statute may not incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bhajiya v. Gopikabai, or contain a general reference to the terms of an earlier statute which are to be made applicable.96. In this case any modification, repeal or re-enactment of the earlier statute will also be carried into in the later, for here, the idea is that certain provisions of an earlier statute which become applicable in certain circumstances are to be made use of for the purpose of the later Act also. Examples of this type of legislation are to be seen in Collector of Customs v. Nathella Sampathu Chett, New central Jute Mills Co. Ltd. v. Assistant Collector of central Excise and Special Land Acquisition Officer v. City Improvement Trust. Whether a particular statute falls into the first or second category is always a question of construction. In the present case, in my view, the legislation falls into the second category. S. 3(3 of the 1957 Act does not incorporate into the 1957 Act any specific provisions of the 1944 Act. It only declares generally that the provisions of the 1944 Act shall apply -So far as may be", that is, to the extent necessary and practical, for the purposes of the 1957 Act as well.97. That apart, it has been held, even when a specific provision is incorporated and the case apparently falls in the first of the above categories, that the rule that repeals, modifications or amendments of the earlier Act will have to be ignored is not adhered to in certain situations. These have been set out in State of Madhya Pradesh v. M. V. Narasimhan. In that case, the Supreme court was considering the question whether the amendment of S. 21 of the Penal Code by the Criminal Law Amendment Act, 1958, was also applicable for purposes of the Prevention of Corruption Act, 1947, which by S. 2 incorporates, for the purposes of that Act, the definition of public servant in S. 21 of the Penal Code. Answering the question in the affirmative, the court outlined the following propositionsa subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia ;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual ; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.The present case falls within the scope of these exceptions, even if S. 3(3 is construed as incorporating certain specific provisions of the 1944 into itself. The legislation presently in question is clearly in pari materia with the 1944 Act. It is also merely supplemental. While the 1944 Act imposes a general levy of excise duty on all goods manufactured and produced, the aim of the present Act is to supplement the levy by an additional duty of the same nature on certain goods. The duration of the applicability is undefined but the statute is clearly enforceable as long as it is in the statute book side by side with the normal excise duties. The clear intention is that the same provisions shall govern both the levies except that the duty under the later Act is confined to certain goods only and its distributability among the States may perhaps follow a different pattern from the principal duty.99. There is no reason or logic why all the incidents attaching under the earlier legislation, insofar as they are not clearly inconsistent with the later one should not be extended to the later legislation as well. As has been pointed out earlier, the Finance Acts which levied special or regular or additional excise duties contained in themselves all the elements of charge of duty. The goods were mentioned and the duty as to be levied either at a percentage of the normal excise duty payable under the 1944 Act or at a percentage of the value of the assessable goods as determined under the 1944 Act. All that was further needed was the applicability of the procedural provisions of the 1944 Act. Here, however, the 1957 Act is incomplete as to the basis of the charge and its provisions would become totally unworkable unless the concepts of "manufacture" and "assessable value" as determined under the 1944 Act are carried into it.
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State of Gujarat Vs. Reliance Industries Ltd | conferring general jurisdiction on High Court in addition to the subordinate courts within the State. 17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same. This proposition is authoritatively determined by this Court in series of judgments. We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows: 9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules -- which, as stated above, are conceived mainly in the interest of public -- that he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State. To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. 19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted. 20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given. | 1[ds]3. A birds eye view of the relevant portion of the aforesaid provision, which is the subject matter of these appeals, reveals that the tax credit which is admissible to the purchasing dealer is subject to provisions of Sub-section (2) of Section 12. Sub-section (3)(b), with which we are primarily concerned, provides that if the goods are falling in the categories mentioned in Sub-clauses (i), (ii) and (iii), the tax credit is to be reduced by the amount of tax calculated at the rate of 4% on the taxable turnover of purchases within the State. As noted above, the raw material/inputs used in the instant goods are fuels. Sub-clause (ii) includes such goods in case the taxable goods are dispatched outside the State in the course of branch transfer. As already mentioned above, after the final product is produced, the Assessee transfers these goods to its various branch offices, many of which are located outside the State and, therefore, those goods which are so transferred would be covered by this Sub-clause and in respect of such goods which are transferred outside the State and are taxable under the VAT Act, the tax credit is to be reduced by 4%. Since the raw material in the instant goods is in the nature of fuels used for the manufacture of goods, it gets covered by Sub-clause (iii) as well.In nutshell, Clause (a) of Sub-section (1) of Section 11 entitles the registered dealer to claim tax credit of the amount of VAT or entry tax which was paid. However, this tax credit is subject to Sub-sections (2) to (12) of Section 11.13. Clause (a) of Sub-Section 3 lays down certain conditions which have to be fulfilled in order to claim the tax credit. First condition is to give the tax credit in those cases where taxable goods are purchased. Thus, it is not admissible where the purchased goods are non-taxable inasmuch as in those cases no tax was paid and thus the question of giving credit would not arise. Second condition mentions that these goods are intended for specific purposes which are stipulated in Sub-clauses (1) to (7) of Clause (a). A perusal of these sub-clauses would indicate that contingencies stipulated in Sub-clauses (i) to (v) pertain to one category, i.e. where the goods are purchased as it is. On the other hand, Sub-clauses (vi) and (vii) would fall in other category. Sub-clause (vi) deals with a situation where the goods, after purchase, are used as raw material in the manufacture of taxable goods or in the packing of goods so manufactured. Sub-clause (vii) deals with those goods which are used as capital goods meant for use in the manufacture of taxable goods. Sub-clause (i) of Clause (b) is relatable to Sub-clause (iii) of Clause (a) as these deal with branch transfer of the goods. Likewise, Sub-clause (vi) read with Sub-clause (iii) of Clause (a) is concerned with Sub-clause (2) of Clause (b) as these deal with a situation where the goods so produced, in respect of which tax credit is given, are used as raw material in the manufacture or in the packing of goods and there is branch transfer of these goods as well outside the State. In such eventualities, tax credit is not fully given as it is reduced by 4%.14. It is clear that the material used even in the packing of goods is treated as raw material and, therefore, this definition is to be treated as term of Article This definition also clarifies that fuels used in the manufacture of goods would be treated as raw material with the only exception of those fuels which are used for the purpose of generation of electricity.15. Keeping in mind the aforesaid aspects, we advert to Section 11(3)(b).It is a non-obstante Clause as it starts with the word notwithstanding. Another aspect which is to be necessarily kept in mind is that it is the amount of tax credit which a dealer would be entitled to claim under Clause (a) that is to be reduced at the rate of 4% and this reduction is to be effected in three eventualities provided under Sub-clauses (i), (ii) and (iii). Insofar as Sub-clause (i) is concerned, it pertains to trading activity and there is no question of any overlap between Sub-clause (i) on the one hand and Sub-clauses (ii) and (iii) on the other. Further, insofar as Sub-clauses (i) and (ii) are concerned, same are disjunctive as the word or is inserted between these two clauses. However, when we come to Clauses (ii) and (iii), where there is a possibility of overlap (as it has happened in the instant case as well), there is no word or used between Clauses (ii) and (iii). Sub-clause (ii) finishes with the punctuation mark full stop and then Sub-clause (iii) starts. This depicts the intention of the Legislature, namely, reduction is not confined to one of the aforesaid two sub-clauses and it can occur under both these provisions. It is rightly pointed out by the Appellant State that these are event based sub-clauses and two events are totally different. Sub-clause (ii) is attracted in those cases where taxable goods are used as raw material (which may not necessarily be fuel but all raw materials are included) and also the other condition which is to be fulfilled is that these goods are dispatched outside the State in the course of branch transfer etc. Therefore, even if the taxable goods are used as raw material in the manufacture or in the packing of goods but they are consumed or sold within the State, Sub-clause (ii) would not apply. On the other hand, Sub-clause (iii) is referable to only fuels which are used for manufacture of goods. It is, thus, a totally separate category and the moment fuel is used in the manufacture of goods, this Sub-clause gets attracted and it would be immaterial whether the goods are sold within the State or outside the State.17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same.19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted.20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows:9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Ruleswhich, as stated above, are conceived mainly in the interest of publicthat he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State.To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. | 1 | 7,330 | 2,267 | ### Instruction:
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conferring general jurisdiction on High Court in addition to the subordinate courts within the State. 17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same. This proposition is authoritatively determined by this Court in series of judgments. We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows: 9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules -- which, as stated above, are conceived mainly in the interest of public -- that he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State. To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. 19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted. 20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.
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the manufacture of goods, this Sub-clause gets attracted and it would be immaterial whether the goods are sold within the State or outside the State.17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same.19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted.20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows:9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Ruleswhich, as stated above, are conceived mainly in the interest of publicthat he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State.To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125.
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Securities & Exchange Board of India Vs. Rakhi Trading Private Ltd | or is dubious in nature and is executed with a view to avoid regulatory detection or does not involve change of beneficial ownership or is executed to create false volumes resulting in upsetting the market equilibrium. Any transaction executed with the intention to defeat the market mechanism whether negotiated or not would be illegal. Whether a transaction has been executed with the intention to manipulate the market or defeat its mechanism will depend upon the intention of the parties which could be inferred from the attending circumstances because direct evidence in such cases may not be available. The nature of the transaction executed, the frequency with which such transactions are undertaken, the value of the transactions, whether they involve circular trading and whether there is real change of beneficial ownership, the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of factors, in the very nature of things, cannot be exhaustive. Any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn. (Emphasis Supplied) From the facts before us, it is clear that the traders in question did not intend to transfer beneficial ownership and therefore these trades are non genuine. 38. Rather than allowing the market forces to operate in their natural course, the traders repeatedly carried out the impugned transactions which deprived other market players from full participation. The repeated reversals and predetermined arrangement to book profits and losses respectively, made it clear that the parties were not trading in the normal sense and ordinary course. Resultantly, there has clearly been a restriction on the free and fair operation of market forces in the instant case. 39. Regulation 2(1)(c) defines fraud. Under Regulation 2(1) (c)(2) a suggestion as to a fact which is not true while he does not believe it to be true is fraud. Under Regulation 2(1) (c)(7), a deceptive behaviour of one depriving another of informed consent or full participation is fraud. And under Regulation 2(1)(c)(8), a false statement without any reasonable ground for believing it to be true is also fraud. In a synchronised and reverse dealing in securities, with predetermined arrangement to book loss or gain between pre-arranged parties, all these vices are attracted. 40. Regulation 3(a) expressly prohibits buying, selling or otherwise dealing in securities in a fraudulent manner. Under Regulation 4(2) dealing in securities shall be deemed to be fraudulent if the trader indulges in an act which creates a false or misleading appearance of trading in the securities market. It is a deeming provision. Such trading also involves an act amounting to manipulation of the price of the security in the sense that the price has been artificially and apparently prefixed. The price does not at all reflect the value of the underlying asset. It is also a transaction in securities entered into without any intention of performing it and without any intention of effecting a change of ownership of such securities, ownership being understood in the limited sense of the rights in the contract. 41. According to SAT, only if there is market impact on account of sham transactions, could there be violation of the PFUTP Regulations. We find it extremely difficult to agree with the proposition. As already noted above, SAT has missed the crucial factors affecting the market integrity, which may be direct or indirect. The stock market is not a platform for any fraudulent or unfair trade practice. The field is open to all the investors. By synchronization and rapid reverse trade, as has been carried out by the traders in the instant case, the price discovery system itself is affected. Except the parties who have pre-fixed the price nobody is in the position to participate in the trade. It also has an adverse impact on the fairness, integrity and transparency of the stock market. 42. We are fortified in our conclusion by the judgment of this Court in Securities And Exchange Board of India v. Kishore R. Ajmera (2016) 6 SCC 368 ), though it is a case pertaining to brokers, wherein it has been held at paragraph 25: 25. The SEBI Act and the Regulations framed thereunder are intended to protect the interests of investors in the Securities Market which has seen substantial growth in tune with the parallel developments in the economy. Investors confidence in the capital/securities market is a reflection of the effectiveness of the regulatory mechanism in force. All such measures are intended to pre-empt manipulative trading and check all kinds of impermissible conduct in order to boost the investors confidence in the capital market. The primary purpose of the statutory enactments is to provide an environment conducive to increased participation and investment in the securities market which is vital to the growth and development of the economy. The provisions of the SEBI Act and the Regulations will, therefore, have to be understood and interpreted in the above light. In this case it was also held that in the absence of direct proof of meeting of minds elsewhere in synchronised transactions, the test should be one of preponderance of probabilities as far as adjudication of civil liability arising out of the violation of the Act or the provision of the Regulations is concerned. To quote: 31. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors... We do not think that those illustrations are exhaustive. There can be several such situations, some of which we have discussed hereinabove. 43. The traders thus having engaged in a fraudulent and unfair trade practice while dealing in securities, are hence liable to be proceeded against for violation of Regulations 3(a), 4(1) and 4(2)(a) of PFUTP Regulations. | 1[ds]33. We find it difficult to appreciate the stand taken by the SAT which is endorsed by the learned senior counsel appearing for the respondents34. We are unable to agree with the arguments of the learned senior counsel appearing for Rakhi Trading. Regulation 4(1) in clear and unmistakable terms has provided that no person shall indulge in a fraudulent or an unfair trade practice in securitiesIn Securities and Exchange Board of India and Ors. v. Shri Kanaiyalal Baldevbhai Patel 43 and Ors. (2017 SCC Online SC 1148), it has been held by this Court that a trade practice is unfair if the conduct undermines the ethical standards and good faith dealings between the parties engaged in business transactions60. Coupled with the above, is the fact, the said conduct can also be construed to be an act of unfair trade practice, which though not a defined expression, has to be understood comprehensively to include any act beyond a fair conduct of business including the business in sale and purchase of securities. However the said question, as suggested by my learned Brother, Ramana, J. is being kept open for a decision in a more appropriate occasion as the resolution required presently can be made irrespective of a decision on the said question36. Ordinarily, the trading would have taken place between anonymous parties and the price would have been determined by the market forces of demand and supply. In the instant case, the parties did not stop at synchronised trading. The facts go beyond that. The trade reversals in this case indicate that the parties did not intend to transfer beneficial ownership and through these orchestrated transactions, the intention of which was not regular trading, other investors have been excluded from participating in these trades. The fact that when the trade was not synchronizing, the traders placed it at unattractive prices is also a strong indication that the traders intended to play with the market37. We also find it difficult to appreciate the stand of SAT that the rationale of change of beneficial ownership does not arise in the derivatives segment. No doubt, as in the case of trade in a scrip in the cash segment, there is no physical delivery of the asset. However, even in the derivative segment there is a change of rights in a contract. In the instant case, through reverse trades, there was no genuine change of rights in the contract. SAT has erred in its understanding of change in beneficial ownership in reverse trades. Even in derivatives, the ownership of the right is restored to the first party when the reverse trade occursFrom the facts before us, it is clear that the traders in question did not intend to transfer beneficial ownership and therefore these trades are non genuine38. Rather than allowing the market forces to operate in their natural course, the traders repeatedly carried out the impugned transactions which deprived other market players from full participation. The repeated reversals and predetermined arrangement to book profits and losses respectively, made it clear that the parties were not trading in the normal sense and ordinary course. Resultantly, there has clearly been a restriction on the free and fair operation of market forces in the instant case42. We are fortified in our conclusion by the judgment of this Court in Securities And Exchange Board of India v. Kishore R. Ajmera (2016) 6 SCC 368 )43. The traders thus having engaged in a fraudulent and unfair trade practice while dealing in securities, are hence liable to be proceeded against for violation of Regulations 3(a), 4(1) and 4(2)(a) of PFUTP Regulations44. As far as brokers are concerned, we are of the view that there is hardly any evidence on their involvement so as to proceed against them for violation of Regulation 7A of the Brokers Regulations and PFUTP Regulations. Merely because a broker facilitated a transaction, it cannot be said that there is violation of the Regulation. SEBI has not provided any material to suggest negligence or connivance on the part of the brokers. As held by this Court in Kishore R. Ajmera (supra), there are several factors to be considered. We would especially like to refer to the case of Angel Trading wherein the broker repeatedly wrote to the National Stock Exchange informing them about trades in the options segment that were executed at unrealistic prices and requesting them to put in mechanisms in the Options segment so that these trades are not allowed to enter the system. In the absence of any material provided by SEBI to prove the charges against the brokers, particularly regarding aiding and abetting fraudulent or unfair trade practices, we are of the opinion that the orders of SEBI against the brokers should be interfered with | 1 | 12,226 | 877 | ### Instruction:
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or is dubious in nature and is executed with a view to avoid regulatory detection or does not involve change of beneficial ownership or is executed to create false volumes resulting in upsetting the market equilibrium. Any transaction executed with the intention to defeat the market mechanism whether negotiated or not would be illegal. Whether a transaction has been executed with the intention to manipulate the market or defeat its mechanism will depend upon the intention of the parties which could be inferred from the attending circumstances because direct evidence in such cases may not be available. The nature of the transaction executed, the frequency with which such transactions are undertaken, the value of the transactions, whether they involve circular trading and whether there is real change of beneficial ownership, the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of factors, in the very nature of things, cannot be exhaustive. Any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn. (Emphasis Supplied) From the facts before us, it is clear that the traders in question did not intend to transfer beneficial ownership and therefore these trades are non genuine. 38. Rather than allowing the market forces to operate in their natural course, the traders repeatedly carried out the impugned transactions which deprived other market players from full participation. The repeated reversals and predetermined arrangement to book profits and losses respectively, made it clear that the parties were not trading in the normal sense and ordinary course. Resultantly, there has clearly been a restriction on the free and fair operation of market forces in the instant case. 39. Regulation 2(1)(c) defines fraud. Under Regulation 2(1) (c)(2) a suggestion as to a fact which is not true while he does not believe it to be true is fraud. Under Regulation 2(1) (c)(7), a deceptive behaviour of one depriving another of informed consent or full participation is fraud. And under Regulation 2(1)(c)(8), a false statement without any reasonable ground for believing it to be true is also fraud. In a synchronised and reverse dealing in securities, with predetermined arrangement to book loss or gain between pre-arranged parties, all these vices are attracted. 40. Regulation 3(a) expressly prohibits buying, selling or otherwise dealing in securities in a fraudulent manner. Under Regulation 4(2) dealing in securities shall be deemed to be fraudulent if the trader indulges in an act which creates a false or misleading appearance of trading in the securities market. It is a deeming provision. Such trading also involves an act amounting to manipulation of the price of the security in the sense that the price has been artificially and apparently prefixed. The price does not at all reflect the value of the underlying asset. It is also a transaction in securities entered into without any intention of performing it and without any intention of effecting a change of ownership of such securities, ownership being understood in the limited sense of the rights in the contract. 41. According to SAT, only if there is market impact on account of sham transactions, could there be violation of the PFUTP Regulations. We find it extremely difficult to agree with the proposition. As already noted above, SAT has missed the crucial factors affecting the market integrity, which may be direct or indirect. The stock market is not a platform for any fraudulent or unfair trade practice. The field is open to all the investors. By synchronization and rapid reverse trade, as has been carried out by the traders in the instant case, the price discovery system itself is affected. Except the parties who have pre-fixed the price nobody is in the position to participate in the trade. It also has an adverse impact on the fairness, integrity and transparency of the stock market. 42. We are fortified in our conclusion by the judgment of this Court in Securities And Exchange Board of India v. Kishore R. Ajmera (2016) 6 SCC 368 ), though it is a case pertaining to brokers, wherein it has been held at paragraph 25: 25. The SEBI Act and the Regulations framed thereunder are intended to protect the interests of investors in the Securities Market which has seen substantial growth in tune with the parallel developments in the economy. Investors confidence in the capital/securities market is a reflection of the effectiveness of the regulatory mechanism in force. All such measures are intended to pre-empt manipulative trading and check all kinds of impermissible conduct in order to boost the investors confidence in the capital market. The primary purpose of the statutory enactments is to provide an environment conducive to increased participation and investment in the securities market which is vital to the growth and development of the economy. The provisions of the SEBI Act and the Regulations will, therefore, have to be understood and interpreted in the above light. In this case it was also held that in the absence of direct proof of meeting of minds elsewhere in synchronised transactions, the test should be one of preponderance of probabilities as far as adjudication of civil liability arising out of the violation of the Act or the provision of the Regulations is concerned. To quote: 31. The conclusion has to be gathered from various circumstances like that volume of the trade effected; the period of persistence in trading in the particular scrip; the particulars of the buy and sell orders, namely, the volume thereof; the proximity of time between the two and such other relevant factors... We do not think that those illustrations are exhaustive. There can be several such situations, some of which we have discussed hereinabove. 43. The traders thus having engaged in a fraudulent and unfair trade practice while dealing in securities, are hence liable to be proceeded against for violation of Regulations 3(a), 4(1) and 4(2)(a) of PFUTP Regulations.
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33. We find it difficult to appreciate the stand taken by the SAT which is endorsed by the learned senior counsel appearing for the respondents34. We are unable to agree with the arguments of the learned senior counsel appearing for Rakhi Trading. Regulation 4(1) in clear and unmistakable terms has provided that no person shall indulge in a fraudulent or an unfair trade practice in securitiesIn Securities and Exchange Board of India and Ors. v. Shri Kanaiyalal Baldevbhai Patel 43 and Ors. (2017 SCC Online SC 1148), it has been held by this Court that a trade practice is unfair if the conduct undermines the ethical standards and good faith dealings between the parties engaged in business transactions60. Coupled with the above, is the fact, the said conduct can also be construed to be an act of unfair trade practice, which though not a defined expression, has to be understood comprehensively to include any act beyond a fair conduct of business including the business in sale and purchase of securities. However the said question, as suggested by my learned Brother, Ramana, J. is being kept open for a decision in a more appropriate occasion as the resolution required presently can be made irrespective of a decision on the said question36. Ordinarily, the trading would have taken place between anonymous parties and the price would have been determined by the market forces of demand and supply. In the instant case, the parties did not stop at synchronised trading. The facts go beyond that. The trade reversals in this case indicate that the parties did not intend to transfer beneficial ownership and through these orchestrated transactions, the intention of which was not regular trading, other investors have been excluded from participating in these trades. The fact that when the trade was not synchronizing, the traders placed it at unattractive prices is also a strong indication that the traders intended to play with the market37. We also find it difficult to appreciate the stand of SAT that the rationale of change of beneficial ownership does not arise in the derivatives segment. No doubt, as in the case of trade in a scrip in the cash segment, there is no physical delivery of the asset. However, even in the derivative segment there is a change of rights in a contract. In the instant case, through reverse trades, there was no genuine change of rights in the contract. SAT has erred in its understanding of change in beneficial ownership in reverse trades. Even in derivatives, the ownership of the right is restored to the first party when the reverse trade occursFrom the facts before us, it is clear that the traders in question did not intend to transfer beneficial ownership and therefore these trades are non genuine38. Rather than allowing the market forces to operate in their natural course, the traders repeatedly carried out the impugned transactions which deprived other market players from full participation. The repeated reversals and predetermined arrangement to book profits and losses respectively, made it clear that the parties were not trading in the normal sense and ordinary course. Resultantly, there has clearly been a restriction on the free and fair operation of market forces in the instant case42. We are fortified in our conclusion by the judgment of this Court in Securities And Exchange Board of India v. Kishore R. Ajmera (2016) 6 SCC 368 )43. The traders thus having engaged in a fraudulent and unfair trade practice while dealing in securities, are hence liable to be proceeded against for violation of Regulations 3(a), 4(1) and 4(2)(a) of PFUTP Regulations44. As far as brokers are concerned, we are of the view that there is hardly any evidence on their involvement so as to proceed against them for violation of Regulation 7A of the Brokers Regulations and PFUTP Regulations. Merely because a broker facilitated a transaction, it cannot be said that there is violation of the Regulation. SEBI has not provided any material to suggest negligence or connivance on the part of the brokers. As held by this Court in Kishore R. Ajmera (supra), there are several factors to be considered. We would especially like to refer to the case of Angel Trading wherein the broker repeatedly wrote to the National Stock Exchange informing them about trades in the options segment that were executed at unrealistic prices and requesting them to put in mechanisms in the Options segment so that these trades are not allowed to enter the system. In the absence of any material provided by SEBI to prove the charges against the brokers, particularly regarding aiding and abetting fraudulent or unfair trade practices, we are of the opinion that the orders of SEBI against the brokers should be interfered with
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Indian Oil Corporation Ltd. & Anr Vs. Ashok Kumar Arora | Officer as an Appellate Court/Authority and, therefore, the impugned judgments of the High Court are unsustainable. He, therefore, prayed that the appeals be allowed and the impugned orders passed by the High Court be quashed and set aside. 18. The respondent Mr. Ashok Kumar Arora appeared in person and tried to justify the orders passed by the High Court. He submitted that the Enquiry Officer had totally misconstrued the materials on record and erroneously found him guilty of the charges levelled against him. There was no sufficient material before the Enquiry Officer to hold him guilty of misconduct and, therefore, the High Court has rightly interfered with the findings of the Enquiry Officer. He also submitted that there is patent discrimination while awarding the extreme penalty of dismissal against him whereas other employees were let off on minor punishments. The order passed by the Disciplinary Authority was thus discriminatory and the High Court had committed no error while ordering his reinstatement. There is no substance in the appeals and the same be dismissed. 19. We have given our anxious thought to the various contentions raised before us and have gone through the materials on record since the respondent was appearing in person. On careful scrutiny of the materials on record, we are of the considered view that the impugned orders passed by the High Court are unsustainable for the following reasons.20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited. For instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz., State of Andhra Pradesh v. S. Sree Rama Rao, 1963(3) SCR 25, State of Andhra Pradesh v. Chitra Venkata Rao, 1976(1) SCR 521, Corporation of City of Nagpur and Anr. v. Ramachandra, 1981(3) SCR 22 and Nelson Motis v. Union of India and Anr., 1993(1) SCT 133(SC) : JT 1992(5) SC 511 : AIR 1992 SC 1981 .21. The Enquiry Officer on appraisal of the materials before him held that the respondent was actively involved and a brain behind procuring false medical certificates and medical bills not only for himself but for other employees and on the basis of which the reimbursement claims were made by the respondent and other employees. The Corporation sanctioned these reimbursement claims of the various employees which had resulted into monetary loss to the Corporation. Before the Enquiry Officer except the respondent other employees of the Corporation admitted the charges and consequently, a minor penalty was awarded to them. The respondent contested the charges levelled against him and denied that he was instrumental in cheating or committing forgery of the medical bills. On consideration of report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard to the involvement of the respondent in the entire episode, the Disciplinary Authority awarded him the penalty of dismissal from service. The order of dismissal passed by the Disciplinary Authority against the respondent was also affirmed by the Appellate Authority. Curiously enough, the High Court in its impugned judgment compared the case of the respondent with the other employees who have been awarded a lesser penalty and opined that there is a discrimination resorted to by the Disciplinary Authority in the matter of awarding the punishment. It is this action of the Disciplinary Authority in awarding the penalty being discriminatory and violative of Article 14 of the Constitution. In support of this reasoning, the High Court placed reliance on the decision of this Court in Sengara Singh and others v. State of Punjab and others, 1983(3) S.L.R. 685 and the passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through the impugned judgment of the High Court dated 27th May, 1993 and were of the view that the High Court was wrong in interfering with the punishment awarded by the Disciplinary Authority. The High Court has totally overlooked the finding of the Enquiry Officer and affirmed by the Disciplinary Authority that the respondent was instrumental in obtaining forged medical bills not only for himself but also for other employees and he was the main actor behind the cheating to the Corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered the award of penalty/punishment to the respondent differently than the other employees who although got the benefit of reimbursement on the forged bills but they accepted their guilt before the Enquiry Officer. Having regard to the facts and circumstances of this case, we are of the opinion that the High Court had committed serious jurisdictional error while interfering with the quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent was disproportionate to his misconduct. The impugned judgment and order of High Court, therefore, are unsustainable.22. Coming to the next submission of the respondent that he was denied a reasonable opportunity by the Enquiry Officer, we find that the same is devoid of any merits. The respondent was unable to illustrate in what manner he was denied a reasonable opportunity.23. The impugned orders made in the review applications filed by the appellants are also unsustainable. In the review applications, all these contentions were specifically taken up, yet the High Court without adverting to any of these contentions has dismissed these review applications without assigning sustainable reasons. | 1[ds]19. We have given our anxious thought to the various contentions raised before us and have gone through the materials on record since the respondent was appearing in person. On careful scrutiny of the materials on record, we are of the considered view that the impugned orders passed by the High Court are unsustainable for the following reasons.20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited. For instance where it is found that the domestic enquiry is vitiated because ofof principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz., State of Andhra Pradesh v. S. Sree Rama Rao, 1963(3) SCR 25, State of Andhra Pradesh v. Chitra Venkata Rao, 1976(1) SCR 521, Corporation of City of Nagpur and Anr. v. Ramachandra, 1981(3) SCR 22 and Nelson Motis v. Union of India and Anr., 1993(1) SCT 133(SC) : JT 1992(5) SC 511 : AIR 1992 SC 1981 .21. The Enquiry Officer on appraisal of the materials before him held that the respondent was actively involved and a brain behind procuring false medical certificates and medical bills not only for himself but for other employees and on the basis of which the reimbursement claims were made by the respondent and other employees. The Corporation sanctioned these reimbursement claims of the various employees which had resulted into monetary loss to the Corporation. Before the Enquiry Officer except the respondent other employees of the Corporation admitted the charges and consequently, a minor penalty was awarded to them. The respondent contested the charges levelled against him and denied that he was instrumental in cheating or committing forgery of the medical bills. On consideration of report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard to the involvement of the respondent in the entire episode, the Disciplinary Authority awarded him the penalty of dismissal from service. The order of dismissal passed by the Disciplinary Authority against the respondent was also affirmed by the Appellate Authority. Curiously enough, the High Court in its impugned judgment compared the case of the respondent with the other employees who have been awarded a lesser penalty and opined that there is a discrimination resorted to by the Disciplinary Authority in the matter of awarding the punishment. It is this action of the Disciplinary Authority in awarding the penalty being discriminatory and violative of Article 14 of the Constitution. In support of this reasoning, the High Court placed reliance on the decision of this Court in Sengara Singh and others v. State of Punjab and others, 1983(3) S.L.R. 685 and the passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through the impugned judgment of the High Court dated 27th May, 1993 and were of the view that the High Court was wrong in interfering with the punishment awarded by the Disciplinary Authority. The High Court has totally overlooked the finding of the Enquiry Officer and affirmed by the Disciplinary Authority that the respondent was instrumental in obtaining forged medical bills not only for himself but also for other employees and he was the main actor behind the cheating to the Corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered the award of penalty/punishment to the respondent differently than the other employees who although got the benefit of reimbursement on the forged bills but they accepted their guilt before the Enquiry Officer. Having regard to the facts and circumstances of this case, we are of the opinion that the High Court had committed serious jurisdictional error while interfering with the quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent was disproportionate to his misconduct. The impugned judgment and order of High Court, therefore, are unsustainable.22. Coming to the next submission of the respondent that he was denied a reasonable opportunity by the Enquiry Officer, we find that the same is devoid of any merits. The respondent was unable to illustrate in what manner he was denied a reasonable opportunity.23. The impugned orders made in the review applications filed by the appellants are also unsustainable. In the review applications, all these contentions were specifically taken up, yet the High Court without adverting to any of these contentions has dismissed these review applications without assigning sustainable reasons. | 1 | 3,310 | 908 | ### Instruction:
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Officer as an Appellate Court/Authority and, therefore, the impugned judgments of the High Court are unsustainable. He, therefore, prayed that the appeals be allowed and the impugned orders passed by the High Court be quashed and set aside. 18. The respondent Mr. Ashok Kumar Arora appeared in person and tried to justify the orders passed by the High Court. He submitted that the Enquiry Officer had totally misconstrued the materials on record and erroneously found him guilty of the charges levelled against him. There was no sufficient material before the Enquiry Officer to hold him guilty of misconduct and, therefore, the High Court has rightly interfered with the findings of the Enquiry Officer. He also submitted that there is patent discrimination while awarding the extreme penalty of dismissal against him whereas other employees were let off on minor punishments. The order passed by the Disciplinary Authority was thus discriminatory and the High Court had committed no error while ordering his reinstatement. There is no substance in the appeals and the same be dismissed. 19. We have given our anxious thought to the various contentions raised before us and have gone through the materials on record since the respondent was appearing in person. On careful scrutiny of the materials on record, we are of the considered view that the impugned orders passed by the High Court are unsustainable for the following reasons.20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited. For instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz., State of Andhra Pradesh v. S. Sree Rama Rao, 1963(3) SCR 25, State of Andhra Pradesh v. Chitra Venkata Rao, 1976(1) SCR 521, Corporation of City of Nagpur and Anr. v. Ramachandra, 1981(3) SCR 22 and Nelson Motis v. Union of India and Anr., 1993(1) SCT 133(SC) : JT 1992(5) SC 511 : AIR 1992 SC 1981 .21. The Enquiry Officer on appraisal of the materials before him held that the respondent was actively involved and a brain behind procuring false medical certificates and medical bills not only for himself but for other employees and on the basis of which the reimbursement claims were made by the respondent and other employees. The Corporation sanctioned these reimbursement claims of the various employees which had resulted into monetary loss to the Corporation. Before the Enquiry Officer except the respondent other employees of the Corporation admitted the charges and consequently, a minor penalty was awarded to them. The respondent contested the charges levelled against him and denied that he was instrumental in cheating or committing forgery of the medical bills. On consideration of report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard to the involvement of the respondent in the entire episode, the Disciplinary Authority awarded him the penalty of dismissal from service. The order of dismissal passed by the Disciplinary Authority against the respondent was also affirmed by the Appellate Authority. Curiously enough, the High Court in its impugned judgment compared the case of the respondent with the other employees who have been awarded a lesser penalty and opined that there is a discrimination resorted to by the Disciplinary Authority in the matter of awarding the punishment. It is this action of the Disciplinary Authority in awarding the penalty being discriminatory and violative of Article 14 of the Constitution. In support of this reasoning, the High Court placed reliance on the decision of this Court in Sengara Singh and others v. State of Punjab and others, 1983(3) S.L.R. 685 and the passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through the impugned judgment of the High Court dated 27th May, 1993 and were of the view that the High Court was wrong in interfering with the punishment awarded by the Disciplinary Authority. The High Court has totally overlooked the finding of the Enquiry Officer and affirmed by the Disciplinary Authority that the respondent was instrumental in obtaining forged medical bills not only for himself but also for other employees and he was the main actor behind the cheating to the Corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered the award of penalty/punishment to the respondent differently than the other employees who although got the benefit of reimbursement on the forged bills but they accepted their guilt before the Enquiry Officer. Having regard to the facts and circumstances of this case, we are of the opinion that the High Court had committed serious jurisdictional error while interfering with the quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent was disproportionate to his misconduct. The impugned judgment and order of High Court, therefore, are unsustainable.22. Coming to the next submission of the respondent that he was denied a reasonable opportunity by the Enquiry Officer, we find that the same is devoid of any merits. The respondent was unable to illustrate in what manner he was denied a reasonable opportunity.23. The impugned orders made in the review applications filed by the appellants are also unsustainable. In the review applications, all these contentions were specifically taken up, yet the High Court without adverting to any of these contentions has dismissed these review applications without assigning sustainable reasons.
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19. We have given our anxious thought to the various contentions raised before us and have gone through the materials on record since the respondent was appearing in person. On careful scrutiny of the materials on record, we are of the considered view that the impugned orders passed by the High Court are unsustainable for the following reasons.20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited. For instance where it is found that the domestic enquiry is vitiated because ofof principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz., State of Andhra Pradesh v. S. Sree Rama Rao, 1963(3) SCR 25, State of Andhra Pradesh v. Chitra Venkata Rao, 1976(1) SCR 521, Corporation of City of Nagpur and Anr. v. Ramachandra, 1981(3) SCR 22 and Nelson Motis v. Union of India and Anr., 1993(1) SCT 133(SC) : JT 1992(5) SC 511 : AIR 1992 SC 1981 .21. The Enquiry Officer on appraisal of the materials before him held that the respondent was actively involved and a brain behind procuring false medical certificates and medical bills not only for himself but for other employees and on the basis of which the reimbursement claims were made by the respondent and other employees. The Corporation sanctioned these reimbursement claims of the various employees which had resulted into monetary loss to the Corporation. Before the Enquiry Officer except the respondent other employees of the Corporation admitted the charges and consequently, a minor penalty was awarded to them. The respondent contested the charges levelled against him and denied that he was instrumental in cheating or committing forgery of the medical bills. On consideration of report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard to the involvement of the respondent in the entire episode, the Disciplinary Authority awarded him the penalty of dismissal from service. The order of dismissal passed by the Disciplinary Authority against the respondent was also affirmed by the Appellate Authority. Curiously enough, the High Court in its impugned judgment compared the case of the respondent with the other employees who have been awarded a lesser penalty and opined that there is a discrimination resorted to by the Disciplinary Authority in the matter of awarding the punishment. It is this action of the Disciplinary Authority in awarding the penalty being discriminatory and violative of Article 14 of the Constitution. In support of this reasoning, the High Court placed reliance on the decision of this Court in Sengara Singh and others v. State of Punjab and others, 1983(3) S.L.R. 685 and the passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through the impugned judgment of the High Court dated 27th May, 1993 and were of the view that the High Court was wrong in interfering with the punishment awarded by the Disciplinary Authority. The High Court has totally overlooked the finding of the Enquiry Officer and affirmed by the Disciplinary Authority that the respondent was instrumental in obtaining forged medical bills not only for himself but also for other employees and he was the main actor behind the cheating to the Corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered the award of penalty/punishment to the respondent differently than the other employees who although got the benefit of reimbursement on the forged bills but they accepted their guilt before the Enquiry Officer. Having regard to the facts and circumstances of this case, we are of the opinion that the High Court had committed serious jurisdictional error while interfering with the quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent was disproportionate to his misconduct. The impugned judgment and order of High Court, therefore, are unsustainable.22. Coming to the next submission of the respondent that he was denied a reasonable opportunity by the Enquiry Officer, we find that the same is devoid of any merits. The respondent was unable to illustrate in what manner he was denied a reasonable opportunity.23. The impugned orders made in the review applications filed by the appellants are also unsustainable. In the review applications, all these contentions were specifically taken up, yet the High Court without adverting to any of these contentions has dismissed these review applications without assigning sustainable reasons.
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Narayan Debnath Vs. The State Of West Bengal | you along with your other associates being armed with gun and other weapon s committed a dacoity in a 3rd class compartment of running train S. 110 Dn. between Habibpur R. S. and Lakinarayanpur junction R.S. in Ranaghat Shantipur section and snatched away cash of Rs. 30, 0, 00/ from Shri Ashutosh Pal of Calcutta causing bullet injuries to him and putting all passengers to fear of death.Your action caused confusion, panic and disturbed public order there.You have thus acted in a manner prejudicial to the maintenance of public order."2. The order was served upon the detenu who made a representation; which was considered by the Government and rejected. We have been taken through the time schedule of various orders passed by the different authorities and we do not find any illegality in that behalf. As a matter of fact, the learned advocate, Mr. Narayana Rao, appearing as amicus curiae for the petitioner, has not raised any ground of illegality in that connection.3. Since, however, the District Magistrate in his affidavit (Paragraph 6) has stated that be based his subjective satisfaction only on the ground mentioned in t he detention order although other materials were placed before him, we examined the records of the case history of the detenu. After a careful examination of the record and the history sheet, we find that the District Magistrate, having regard to the grave nature of the act committed by the detenu, was bona fide satisfied that the said act was sufficient for making, the detention order. Mr. Narayana Rao, however, submits that unless the facts stated in the ground are proved to the satisfaction of this Court, no action can be taken under the Act. We are unable, to accede to this sub- mission. It is because that the act complained of cannot perhaps be satisfactorily proved in a court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further commission of offenses of similar nature. Besides, it is not the function of the Court t o examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited.The learned counsel next contends that this is at the worst a matter affecting law and order but not public order. We are unable to accept this submission. When an armed robbery or dacoity like this is alleged to be committed by the petitioner armed with guns with his associates similarly armed, in a running train, it no longer remains a matter of simple law and order as the peaceful tempo in life of the community at large is also affected thereby. It not only puts the passengers from various places and walks of life in the particular. third class compartment in fear but the passengers of the entire train and even of other running trains in panic. Public-order and life of the community is hereby clearly disturbed. That amounts to public disorder which has t o be prevented by action under the Act. Besides, the news of this type of daring dacoity in a running train is even likely to prevent the traveling public from availing of communication by train. Such consequences and effects are bound to affect public order which is the opposite of public disorder. If any authority is needed we have one in A.I.R. 1972 S.C. p. 2146 (Subal Chanadra Ghosh v. State of West Bengal) wherein one of us (Jaganmohan Reddy, J.) observed as follows" The facts set out in ground No. 1 clearly show that the offence alleged against him (detenu) is committed in a daring manner in the presence of passengers which must been very panicky and disturbed the public order."4. Again in Arun Ghosh v. State of West Bengal([1970] 3 S. C. R. 288.) this Court dealing with the question of public order observed as follows"The question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. The test is: Does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquility of society."In yet another decision of this Court in Ram Manohar Lohias case ([1966] 1 S. C. R. 709.) Hidayatullah J. as he then was, speaking for the majority, put in a picturesque language the whole concept of public order thus"It will thus appear that just as "public order" in the rulings of this Court was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that- an act may affect public order but not security of the State."5. We are clearly of the view that the ground on which the detention order has been made in this case would reasonably give rise to a bonafide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and that those who are alleged to have taken part in even a single incident of this magnitude had to be detained in order that the tempo of peace in public life was not jeopardised. We have, therefore, no hesitation in holding that there is no infirmity in the impugned order. | 0[ds]Since, however, the District Magistrate in his affidavit (Paragraph 6) has stated that be based his subjective satisfaction only on the ground mentioned in t he detention order although other materials were placed before him, we examined the records of the case history of the detenu. After a careful examination of the record and the history sheet, we find that the District Magistrate, having regard to the grave nature of the act committed by the detenu, was bona fide satisfied that the said act was sufficient for making, the detention order. Mr. Narayana Rao, however, submits that unless the facts stated in the ground are proved to the satisfaction of this Court, no action can be taken under the Act. We are unable, to accede to this sub- mission. It is because that the act complained of cannot perhaps be satisfactorily proved in a court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further commission of offenses of similar nature. Besides, it is not the function of the Court t o examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited.The learned counsel next contends that this is at the worst a matter affecting law and order but not public order. We are unable to accept this submission. When an armed robbery or dacoity like this is alleged to be committed by the petitioner armed with guns with his associates similarly armed, in a running train, it no longer remains a matter of simple law and order as the peaceful tempo in life of the community at large is also affected thereby. It not only puts the passengers from various places and walks of life in the particular. third class compartment in fear but the passengers of the entire train and even of other running trains in panic. Public-order and life of the community is hereby clearly disturbed. That amounts to public disorder which has t o be prevented by action under the Act. Besides, the news of this type of daring dacoity in a running train is even likely to prevent the traveling public from availing of communication by train. Such consequences and effects are bound to affect public order which is the opposite of publicare clearly of the view that the ground on which the detention order has been made in this case would reasonably give rise to a bonafide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and that those who are alleged to have taken part in even a single incident of this magnitude had to be detained in order that the tempo of peace in public life was not jeopardised. We have, therefore, no hesitation in holding that there is no infirmity in the impugned order. | 0 | 1,192 | 559 | ### 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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you along with your other associates being armed with gun and other weapon s committed a dacoity in a 3rd class compartment of running train S. 110 Dn. between Habibpur R. S. and Lakinarayanpur junction R.S. in Ranaghat Shantipur section and snatched away cash of Rs. 30, 0, 00/ from Shri Ashutosh Pal of Calcutta causing bullet injuries to him and putting all passengers to fear of death.Your action caused confusion, panic and disturbed public order there.You have thus acted in a manner prejudicial to the maintenance of public order."2. The order was served upon the detenu who made a representation; which was considered by the Government and rejected. We have been taken through the time schedule of various orders passed by the different authorities and we do not find any illegality in that behalf. As a matter of fact, the learned advocate, Mr. Narayana Rao, appearing as amicus curiae for the petitioner, has not raised any ground of illegality in that connection.3. Since, however, the District Magistrate in his affidavit (Paragraph 6) has stated that be based his subjective satisfaction only on the ground mentioned in t he detention order although other materials were placed before him, we examined the records of the case history of the detenu. After a careful examination of the record and the history sheet, we find that the District Magistrate, having regard to the grave nature of the act committed by the detenu, was bona fide satisfied that the said act was sufficient for making, the detention order. Mr. Narayana Rao, however, submits that unless the facts stated in the ground are proved to the satisfaction of this Court, no action can be taken under the Act. We are unable, to accede to this sub- mission. It is because that the act complained of cannot perhaps be satisfactorily proved in a court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further commission of offenses of similar nature. Besides, it is not the function of the Court t o examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited.The learned counsel next contends that this is at the worst a matter affecting law and order but not public order. We are unable to accept this submission. When an armed robbery or dacoity like this is alleged to be committed by the petitioner armed with guns with his associates similarly armed, in a running train, it no longer remains a matter of simple law and order as the peaceful tempo in life of the community at large is also affected thereby. It not only puts the passengers from various places and walks of life in the particular. third class compartment in fear but the passengers of the entire train and even of other running trains in panic. Public-order and life of the community is hereby clearly disturbed. That amounts to public disorder which has t o be prevented by action under the Act. Besides, the news of this type of daring dacoity in a running train is even likely to prevent the traveling public from availing of communication by train. Such consequences and effects are bound to affect public order which is the opposite of public disorder. If any authority is needed we have one in A.I.R. 1972 S.C. p. 2146 (Subal Chanadra Ghosh v. State of West Bengal) wherein one of us (Jaganmohan Reddy, J.) observed as follows" The facts set out in ground No. 1 clearly show that the offence alleged against him (detenu) is committed in a daring manner in the presence of passengers which must been very panicky and disturbed the public order."4. Again in Arun Ghosh v. State of West Bengal([1970] 3 S. C. R. 288.) this Court dealing with the question of public order observed as follows"The question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. The test is: Does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquility of society."In yet another decision of this Court in Ram Manohar Lohias case ([1966] 1 S. C. R. 709.) Hidayatullah J. as he then was, speaking for the majority, put in a picturesque language the whole concept of public order thus"It will thus appear that just as "public order" in the rulings of this Court was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that- an act may affect public order but not security of the State."5. We are clearly of the view that the ground on which the detention order has been made in this case would reasonably give rise to a bonafide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and that those who are alleged to have taken part in even a single incident of this magnitude had to be detained in order that the tempo of peace in public life was not jeopardised. We have, therefore, no hesitation in holding that there is no infirmity in the impugned order.
### Response:
0
### Explanation:
Since, however, the District Magistrate in his affidavit (Paragraph 6) has stated that be based his subjective satisfaction only on the ground mentioned in t he detention order although other materials were placed before him, we examined the records of the case history of the detenu. After a careful examination of the record and the history sheet, we find that the District Magistrate, having regard to the grave nature of the act committed by the detenu, was bona fide satisfied that the said act was sufficient for making, the detention order. Mr. Narayana Rao, however, submits that unless the facts stated in the ground are proved to the satisfaction of this Court, no action can be taken under the Act. We are unable, to accede to this sub- mission. It is because that the act complained of cannot perhaps be satisfactorily proved in a court of law or that the witnesses are unwilling to come forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further commission of offenses of similar nature. Besides, it is not the function of the Court t o examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited.The learned counsel next contends that this is at the worst a matter affecting law and order but not public order. We are unable to accept this submission. When an armed robbery or dacoity like this is alleged to be committed by the petitioner armed with guns with his associates similarly armed, in a running train, it no longer remains a matter of simple law and order as the peaceful tempo in life of the community at large is also affected thereby. It not only puts the passengers from various places and walks of life in the particular. third class compartment in fear but the passengers of the entire train and even of other running trains in panic. Public-order and life of the community is hereby clearly disturbed. That amounts to public disorder which has t o be prevented by action under the Act. Besides, the news of this type of daring dacoity in a running train is even likely to prevent the traveling public from availing of communication by train. Such consequences and effects are bound to affect public order which is the opposite of publicare clearly of the view that the ground on which the detention order has been made in this case would reasonably give rise to a bonafide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and that those who are alleged to have taken part in even a single incident of this magnitude had to be detained in order that the tempo of peace in public life was not jeopardised. We have, therefore, no hesitation in holding that there is no infirmity in the impugned order.
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General Manager, B. E. S. T.Undertaking, Bombay Vs. Mrs. Agnes | he is under a duty to appear punctually at the depot at the calling time. If he is late by more than one hour he will be marked absent. If he does not appear at the calling time or "misses his car", he will not be given any work for the day unless there is actually work available for him. If he "misses his car" more than three times in a moth, he will be reverted to the extra list, i.e., the list of employees other than permanent. He is given a uniform. He is permitted to travel free of charge in a bus in the said uniform. So long as he is in the uniform he can only travel in the bus standing and he cannot occupy a seat even on payment of the prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver of the Undertaking. He can also be transferred to different depots. It is manifest from the aforesaid rules that the timings are of paramount importance in the days work of bus driver.If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day; and if he is absent for 3 days in a month, he will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertaking. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a condition of his service.14. Bombay is a City of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the schedule timings, for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer. D. W. 1, a Traffic Inspectors of B. E. S. T. Undertaking, says that instructions are given to all the drivers and conductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees it would be futile to suggest that they could as well go by local suburban trains or by walking. The former, they could not afford, and the later, having regard to the long distances involved would not be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshop factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the "premises". An illustration may make our point clear. Suppose, in view of the long distances to be covered by the employees, the Corporation, as a condition of service, provides a bus for collecting all the drivers from their houses so that they may reach their depots in time and to take them back after the days work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is not one given in the course of employment? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for coming to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility? They are given that facility not as members of the public but as employees; not as a grace but as of right because efficiency of the service demands it.We would, therefore, hold that when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment.15. We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the course of his employment and therefore his wife is entitled to compensation. No attempt was made to question the correctness of the quantum of compensation fixed by the High Court.16. Before leaving the case we must express our thanks to Mr. Ganapati Iyer for helping us as amicus curiae. | 0[ds]12. Under S. 3 (1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word "duty" has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are therefore, of little assistance, except in so far as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority.13. At this stage to appreciate the scope of "duty" of a bus driver in its wider sense, the relevant Standing Rules of the B. E. S. T. Undertaking may be scrutinized. We are extracting only the rules made in regard to permanent bus drivers material to the presentbus driver is recruited to the service of the B. E. S. T. Undertaking. Before appointment the rules and regulations of the Undertaking are explained to him and he enters into an agreement with the Undertaking on the basis of those terms. He is allotted to one depot, but he may be transferred to another depot. The working hours are fixed at 8 hours a day and he is under a duty to appear punctually at the depot at the calling time. If he is late by more than one hour he will be marked absent. If he does not appear at the calling time or "misses his car", he will not be given any work for the day unless there is actually work available for him. If he "misses his car" more than three times in a moth, he will be reverted to the extra list, i.e., the list of employees other than permanent. He is given a uniform. He is permitted to travel free of charge in a bus in the said uniform. So long as he is in the uniform he can only travel in the bus standing and he cannot occupy a seat even on payment of the prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver of the Undertaking. He can also be transferred to different depots. It is manifest from the aforesaid rules that the timings are of paramount importance in the days work of bus driver.If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day; and if he is absent for 3 days in a month, he will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertaking. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a condition of his service.14. Bombay is a City of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the schedule timings, for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer. D. W. 1, a Traffic Inspectors of B. E. S. T. Undertaking, says that instructions are given to all the drivers and conductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees it would be futile to suggest that they could as well go by local suburban trains or by walking. The former, they could not afford, and the later, having regard to the long distances involved would not be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshop factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the "premises". An illustration may make our point clear. Suppose, in view of the long distances to be covered by the employees, the Corporation, as a condition of service, provides a bus for collecting all the drivers from their houses so that they may reach their depots in time and to take them back after the days work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is not one given in the course of employment? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for coming to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility? They are given that facility not as members of the public but as employees; not as a grace but as of right because efficiency of the service demands it.We would, therefore, hold that when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment.15. We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the course of his employment and therefore his wife is entitled to compensation. No attempt was made to question the correctness of the quantum of compensation fixed by the High Court. | 0 | 6,964 | 1,528 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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he is under a duty to appear punctually at the depot at the calling time. If he is late by more than one hour he will be marked absent. If he does not appear at the calling time or "misses his car", he will not be given any work for the day unless there is actually work available for him. If he "misses his car" more than three times in a moth, he will be reverted to the extra list, i.e., the list of employees other than permanent. He is given a uniform. He is permitted to travel free of charge in a bus in the said uniform. So long as he is in the uniform he can only travel in the bus standing and he cannot occupy a seat even on payment of the prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver of the Undertaking. He can also be transferred to different depots. It is manifest from the aforesaid rules that the timings are of paramount importance in the days work of bus driver.If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day; and if he is absent for 3 days in a month, he will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertaking. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a condition of his service.14. Bombay is a City of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the schedule timings, for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer. D. W. 1, a Traffic Inspectors of B. E. S. T. Undertaking, says that instructions are given to all the drivers and conductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees it would be futile to suggest that they could as well go by local suburban trains or by walking. The former, they could not afford, and the later, having regard to the long distances involved would not be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshop factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the "premises". An illustration may make our point clear. Suppose, in view of the long distances to be covered by the employees, the Corporation, as a condition of service, provides a bus for collecting all the drivers from their houses so that they may reach their depots in time and to take them back after the days work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is not one given in the course of employment? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for coming to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility? They are given that facility not as members of the public but as employees; not as a grace but as of right because efficiency of the service demands it.We would, therefore, hold that when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment.15. We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the course of his employment and therefore his wife is entitled to compensation. No attempt was made to question the correctness of the quantum of compensation fixed by the High Court.16. Before leaving the case we must express our thanks to Mr. Ganapati Iyer for helping us as amicus curiae.
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0
### Explanation:
but he may be transferred to another depot. The working hours are fixed at 8 hours a day and he is under a duty to appear punctually at the depot at the calling time. If he is late by more than one hour he will be marked absent. If he does not appear at the calling time or "misses his car", he will not be given any work for the day unless there is actually work available for him. If he "misses his car" more than three times in a moth, he will be reverted to the extra list, i.e., the list of employees other than permanent. He is given a uniform. He is permitted to travel free of charge in a bus in the said uniform. So long as he is in the uniform he can only travel in the bus standing and he cannot occupy a seat even on payment of the prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver of the Undertaking. He can also be transferred to different depots. It is manifest from the aforesaid rules that the timings are of paramount importance in the days work of bus driver.If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day; and if he is absent for 3 days in a month, he will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertaking. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a condition of his service.14. Bombay is a City of distances. The transport service practically covers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the schedule timings, for he has to traverse a long distance. But for this right, not only punctuality and timings cannot be maintained, but his efficiency will also suffer. D. W. 1, a Traffic Inspectors of B. E. S. T. Undertaking, says that instructions are given to all the drivers and conductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees it would be futile to suggest that they could as well go by local suburban trains or by walking. The former, they could not afford, and the later, having regard to the long distances involved would not be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is not exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are not of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or notional extension of employment developed in the context of specific workshop factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adopted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the "premises". An illustration may make our point clear. Suppose, in view of the long distances to be covered by the employees, the Corporation, as a condition of service, provides a bus for collecting all the drivers from their houses so that they may reach their depots in time and to take them back after the days work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is not one given in the course of employment? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for coming to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility? They are given that facility not as members of the public but as employees; not as a grace but as of right because efficiency of the service demands it.We would, therefore, hold that when a driver when going home from the depot or coming to the depot uses the bus, any accident that happens to him is an accident in the course of his employment.15. We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the course of his employment and therefore his wife is entitled to compensation. No attempt was made to question the correctness of the quantum of compensation fixed by the High Court.
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M/S. Khoday Distilleries Ltd Vs. State Of Karnataka | MSIL, it in turn, places orders with the suppliers or manufacturers concerned. The business activity of the appellants cannot, therefore, be said to be curtailed in any manner. Nor can there be any hardship on the appellants. Once the Rules oblige the manufacturers to supply their product only to the company holding the distributor licence, a corresponding duty is cast on the distributor to place orders with the suppliers concerned whenever demand for a particular product is received by it 16. Looking to the channelising role of MSIL, the fear of discrimination between different suppliers expressed by the appellants does not appear to be justified. In the case of Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay [ 1974 (2) SCC 402 : 1975 (1) SCR 1 ] (SCR at p. 23) this Court has observed that it is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. The same view was reiterated in Director of Industries v. Deep Chand Agarwal [ 1980 (2) SCC 332 : 1980 (2) SCR 1015 ] (SCR at pp. 1021-22). Also, if there is discrimination in actual practice, this Court is not powerless 17. The second ground of hardship which is pointed out relates to excise duty. Under the Karnataka Excise (Excise Duties and Privileges Fee) Rules, 1968 a rebate in excise duty is given in respect of liquor which is either exported outside India or is exported to another State within India. This makes the liquor sold outside the State or exported considerably cheaper since it bears less incidence of excise duty. Under the present scheme, however, all these sales are converted into local sales because the sale must be made to MSIL who, in turn, will either export it, if it has received an export order, or will export it to a place within India but outside the State. In both these cases, since the first sale will be within the State to MSIL, a substantial rebate in excise will be lost and the goods manufactured by the appellants will become far more expensive and, therefore, will become much less competitive in the outside market. There is a similar provision relating to rebate in sales tax which also the appellants will lose. There is no doubt that this will cause some hardship to the appellants. The fact, however, remains that any concession which is granted by the State for export sales or inter-State sales is a matter of policy. Granting of such concession or absence of such concession cannot make the rule itself manifestly arbitrary or unreasonable. If the appellants are aggrieved by the existing Rules or would like a similar concession to be extended to sales which are to be made to MSIL in respect of export orders or orders for supply outside the State received by it, it is open to them to make a suitable representation to the State Government. The absence of availability of such a concession, however, cannot make the Rules arbitrary or violative of Article 14. All manufacturers and suppliers within the State of Karnataka are governed by the same Rules and will, therefore, have to pay the same taxes. All persons who are similarly situated are similarly affected by the amended Rules. There is, therefore, no discrimination under Article 14 in its traditional sense 18. The appellants have placed reliance upon the observations of this Court in Doongaji & Co. (I) v. State of M.P. 1991 (2) Supp(SCC) 313] (SCC at p. 220) to the effect that there is no fundamental right in a citizen to carry on trade or business in liquor. However, when the State has decided to part with such right or privilege to others, then the State can regulate the business consistent with the principles of equality enshrined under Article 14 and any infraction in this behalf at its pleasure is arbitrary as violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of liquor through any agency other than the State would be subject to the rigours of Article 14. We respectfully agree with these observations. In the present case, however, there is no violation of Article 14 19. It was also submitted before us that the Rules must be considered manifestly arbitrary because the avowed purpose of formulating the amended Rules is to stop evasion of excise. In the counter-statement filed by the Government of Karnataka before the High Court of Karnataka it has set out the object of the amendment. The affidavit states : The impugned Rules have been made with the sole object of preventing leakage of excise revenue and, therefore, they are reasonable restrictions within the meaning of Article 19(6). It is submitted before us that such evasion could have been checked by other means which would have been more beneficial to or less hard on the appellants. How such evasion is to be checked, however, is a matter of policy. So long as the policy as formulated in the amended Rules is not manifestly arbitrary or wholly unreasonable, it cannot be considered as violative of Article 14. There is, in the present case, no self-evident disproportionality between the object to be achieved and the Rules which have been framed 20. It was lastly submitted that MSIL ought not to have been nominated for a distributor licence because it is not competent to discharge its obligations and does not have the necessary infrastructure. This plea was raised before the Karnataka High Court at a time when MSIL had not started functioning. It is now a fully functional authority. MSIL has stated that it has a large number of depots in various districts of the State and is already handling very substantial business. This plea, therefore, merits no further consideration. In any event, some problems with the discharge of its duties by MSIL will not render the amended Rules providing for a distributor licence arbitrary or violative of Article 14 | 0[ds]We do not think so. A distributor licence is basically not different from the licences so prescribed. In fact the licences cover the whole gamut of activities from manufacture to consumption of liquor. Clause (11) of the amended Rule 3 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 which prescribes a distributor licence refers to it as a licence to deal in the products of all distilleries or breweries or wineries in the State, or a licence to import liquor from outside the State for the purpose of distribution or sale within the State; or to export liquor outside the State. This is clearly a licence to deal in liquor in the above manner. The licence shall be in Form CL 11 and shall be subject to renewal each year at the discretion of the Excise Commissioner. The Form CL 11 prescribes the conditions of a distributor licence11. A distributor licence, therefore, is only a licence to deal in liquor by sale and purchase of liquor. This activity is not something different from what is contemplated under the Act itself or in respect of which the rule-making authority has been delegated to the State under Section 71. The mere fact that a monopoly of distributor licence is sought to be created, does not take the licence outside the ambit of the Act. The Act itself provides that the number of licences can be regulated by the State. If the State chooses to regulate licences by providing that the licence shall be granted only to a company owned by the State, it cannot be said that such a licence is something which is outside the purview of the Act or the rule-making authority of the State under the ActThe Act is clearly within the legislative competence of the State Legislature. Nobody has challenged it. The amended Rules are within the scope of the delegated authority under Section 71. If the main Act is within the legislative competence of the State Legislature and the Rules have been framed under a validly delegated authority and are within the scope of that authority, we fail to see how the Rules can be challenged on the ground of lack of legislative competence. If the Act is valid, so are the RulesAlthough the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [ 1985 (1) SCC 641 : 1985 SCC(Tax) 121 : 1985 (2) SCR 287 ] (SCR at p. 243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the ConstitutionThis Court has held that though there is no fundamental right in a citizen to carry on trade or business in liquor; and the State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants such as its manufacture, storage, export, import, sale and possession; nevertheless when the State decides to grant such right or privilege to others, the State cannot escape the rigour of Article 1415. In the present case, therefore, we must examine whether there is any manifest arbitrariness in prescribing a distributor licence which can be granted only to a company owned by the State; and in compelling the appellants to sell their product to the distributor. The appellants have pointed out that the amendments must be considered as arbitrary because they cause undue hardship to all those who are concerned with the manufacture and sale of liquor. They point out that although the manufacturers are obliged to sell their commodity to the MSIL, there is no corresponding obligation cast on the MSIL to buy the liquor manufactured by the manufacturers in the State of Karnataka. In the absence of such an obligation on the MSIL to buy the liquor, it can well happen that MSIL may act arbitrarily or capriciously and may purchase or not purchase liquor from the manufacturers at its own sweet will. This would seriously affect the business of all those engaged in the manufacture and sale of liquor. This apprehension does not appear to be justified. In the Statement of Objections on behalf of the State Excise Commissioner which were filed before the High Court of Karnataka, the respondents have explained in para 16 that it is not correct to state that the government company is at liberty to purchase or not to purchase the liquor produced by the petitioners. It is bound to purchase the liquor if there is demand from the wholesalers. Even otherwise it has been submitted that proper guidelines will be issued to the government company in this behalf. The government company is expected to act bona fide and with responsibility and it is not correct to contend that the government agency will be interested only in a particular manufacturer. This submission has considerable force. What is more important, during the period that these appeals were pending before us, MSIL has not merely established several depots but has carried on distribution of liquor in the State of Karnataka on a large scale. The learned counsel appearing for the respondents have stated before us that MSIL receives orders for supply from various purchasers. These orders specify the brand of liquor and the company from which the supplies are required. Accordingly MSIL places orders with the companies concerned for the brands of liquor which are demanded by their purchasers. It is on the basis of these demand requisitions received by MSIL that MSIL places orders. There is, therefore, no question of any hardship being caused to the appellants by reason of the fact that their sales have to be channelled through an intermediary. Depending upon the orders received by the MSIL, it in turn, places orders with the suppliers or manufacturers concerned. The business activity of the appellants cannot, therefore, be said to be curtailed in any manner. Nor can there be any hardship on the appellants. Once the Rules oblige the manufacturers to supply their product only to the company holding the distributor licence, a corresponding duty is cast on the distributor to place orders with the suppliers concerned whenever demand for a particular product is received by it17. The second ground of hardship which is pointed out relates to excise duty. Under the Karnataka Excise (Excise Duties and Privileges Fee) Rules, 1968 a rebate in excise duty is given in respect of liquor which is either exported outside India or is exported to another State within India. This makes the liquor sold outside the State or exported considerably cheaper since it bears less incidence of excise duty. Under the present scheme, however, all these sales are converted into local sales because the sale must be made to MSIL who, in turn, will either export it, if it has received an export order, or will export it to a place within India but outside the State. In both these cases, since the first sale will be within the State to MSIL, a substantial rebate in excise will be lost and the goods manufactured by the appellants will become far more expensive and, therefore, will become much less competitive in the outside market. There is a similar provision relating to rebate in sales tax which also the appellants will lose. There is no doubt that this will cause some hardship to the appellants. The fact, however, remains that any concession which is granted by the State for export sales or inter-State sales is a matter of policy. Granting of such concession or absence of such concession cannot make the rule itself manifestly arbitrary or unreasonable. If the appellants are aggrieved by the existing Rules or would like a similar concession to be extended to sales which are to be made to MSIL in respect of export orders or orders for supply outside the State received by it, it is open to them to make a suitable representation to the State Government. The absence of availability of such a concession, however, cannot make the Rules arbitrary or violative of Article 14. All manufacturers and suppliers within the State of Karnataka are governed by the same Rules and will, therefore, have to pay the same taxes. All persons who are similarly situated are similarly affected by the amended Rules. There is, therefore, no discrimination under Article 14 in its traditional senseTherefore, the exclusive right or privilege of manufacture, storage, sale, import and export of liquor through any agency other than the State would be subject to the rigours of Article 14. We respectfully agree with these observations. In the present case, however, there is no violation of Article 14How such evasion is to be checked, however, is a matter of policy. So long as the policy as formulated in the amended Rules is not manifestly arbitrary or wholly unreasonable, it cannot be considered as violative of Article 14. There is, in the present case, no self-evident disproportionality between the object to be achieved and the Rules which have been framedThis plea was raised before the Karnataka High Court at a time when MSIL had not started functioning. It is now a fully functional authority. MSIL has stated that it has a large number of depots in various districts of the State and is already handling very substantial business. This plea, therefore, merits no further consideration. In any event, some problems with the discharge of its duties by MSIL will not render the amended Rules providing for a distributor licence arbitrary or violative of Article 14Thus the State Government is authorised to levy fees for various kinds of permits or licences which may be required for activities connected with the manufacture, supply or sale of liquor. Labelling of liquor bottles with brand labels is an essential activity connected with the sale and distribution of different varieties of liquor manufactured in the State by different manufacturers or imported into or exported outside the State. Different varieties of liquor produced by various manufacturers are thus identified for purchase or sale. It is, therefore, permissible for the State Government under the Andhra Pradesh Excise Act, 1968 to levy fees for approval of different varieties of labels to be affixed to liquor bottles for the purpose of distribution and sale of liquor. The amendments are within the rule-making power of the State Government. In fact prior to these amendments, a fee of Rs 100 was being charged for approval of labels. It is nobodys case that the fee was beyond the rule-making power under Section 72 of the ActSLPs (C) Nos. 13817-13828 of 199326. It is also contended that the fee of Rs 25, 000 for the approval of any one variety of labels is exorbitant and totally disproportionate to the work involved.Therefore, such levy violates Article 14. But, in this connection, it is necessary to bear in mind that the State under its regulatory powers has the right even to prohibit absolutely every form of activity in relation to intoxicants, its manufactures, storage, export, import, sale or possession. In all these respects the right to regulate these activities or to carry on these activities vests in the State. When, therefore, such rights and parted with, it is open to the State to part with such rights for a consideration. The fee for approval of labels is an aspect of the right to sell or distribute liquor which right the State Government has parted with for consideration in the form of a fee. The increase in the fee from Rs 100 to Rs 25, 000 may appear, at first glance, to be exorbitant. But it constitutes an extremely small percentage of the total turnover of various products to which these labels are affixed. The fee for approval cannot, therefore, be considered as exorbitant or its imposition wholly arbitrary. It is not the case of the petitioners that their trade in liquor is seriously affected by the levy of this increased fee. In the case of Har Shankar v. Dy. Excise & Taxation Commr. [ 1975 (1) SCC 737 : 1975 (3) SCR 254 ] (SCR at p. 278) this Court upheld the right of the State to prohibit absolutely all forms of activities in relation to intoxicants. It said that the wider right to prohibit absolutely would include the narrower right to permit dealing in intoxicants on such terms of general application as the State deems expedient. The Court said that the Government has the power to charge a price for parting with its rights. It also further observed that the licence fee which the State Government charged to the licensee through the medium of auctions or the fixed fee which was charged to the vendors of foreign liquor holding licences need bear no quid pro quo to the services rendered to the licensees. The word fee in this context is not used in the technical sense of the expression. By licence fee or fixed fee is meant the price or consideration which the Government charges to the licensees for parting with its privileges and granting them to the licensees. As the State can carry on a trade or business, such a charge is the normal incidence of a trading or business transaction. The contention, therefore, of the petitioners that there is no quid pro quo between the increased label fee and the services rendered also has no merit. It is based upon a misconception of the nature of the levy | 0 | 4,782 | 2,704 | ### Instruction:
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MSIL, it in turn, places orders with the suppliers or manufacturers concerned. The business activity of the appellants cannot, therefore, be said to be curtailed in any manner. Nor can there be any hardship on the appellants. Once the Rules oblige the manufacturers to supply their product only to the company holding the distributor licence, a corresponding duty is cast on the distributor to place orders with the suppliers concerned whenever demand for a particular product is received by it 16. Looking to the channelising role of MSIL, the fear of discrimination between different suppliers expressed by the appellants does not appear to be justified. In the case of Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay [ 1974 (2) SCC 402 : 1975 (1) SCR 1 ] (SCR at p. 23) this Court has observed that it is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. The same view was reiterated in Director of Industries v. Deep Chand Agarwal [ 1980 (2) SCC 332 : 1980 (2) SCR 1015 ] (SCR at pp. 1021-22). Also, if there is discrimination in actual practice, this Court is not powerless 17. The second ground of hardship which is pointed out relates to excise duty. Under the Karnataka Excise (Excise Duties and Privileges Fee) Rules, 1968 a rebate in excise duty is given in respect of liquor which is either exported outside India or is exported to another State within India. This makes the liquor sold outside the State or exported considerably cheaper since it bears less incidence of excise duty. Under the present scheme, however, all these sales are converted into local sales because the sale must be made to MSIL who, in turn, will either export it, if it has received an export order, or will export it to a place within India but outside the State. In both these cases, since the first sale will be within the State to MSIL, a substantial rebate in excise will be lost and the goods manufactured by the appellants will become far more expensive and, therefore, will become much less competitive in the outside market. There is a similar provision relating to rebate in sales tax which also the appellants will lose. There is no doubt that this will cause some hardship to the appellants. The fact, however, remains that any concession which is granted by the State for export sales or inter-State sales is a matter of policy. Granting of such concession or absence of such concession cannot make the rule itself manifestly arbitrary or unreasonable. If the appellants are aggrieved by the existing Rules or would like a similar concession to be extended to sales which are to be made to MSIL in respect of export orders or orders for supply outside the State received by it, it is open to them to make a suitable representation to the State Government. The absence of availability of such a concession, however, cannot make the Rules arbitrary or violative of Article 14. All manufacturers and suppliers within the State of Karnataka are governed by the same Rules and will, therefore, have to pay the same taxes. All persons who are similarly situated are similarly affected by the amended Rules. There is, therefore, no discrimination under Article 14 in its traditional sense 18. The appellants have placed reliance upon the observations of this Court in Doongaji & Co. (I) v. State of M.P. 1991 (2) Supp(SCC) 313] (SCC at p. 220) to the effect that there is no fundamental right in a citizen to carry on trade or business in liquor. However, when the State has decided to part with such right or privilege to others, then the State can regulate the business consistent with the principles of equality enshrined under Article 14 and any infraction in this behalf at its pleasure is arbitrary as violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of liquor through any agency other than the State would be subject to the rigours of Article 14. We respectfully agree with these observations. In the present case, however, there is no violation of Article 14 19. It was also submitted before us that the Rules must be considered manifestly arbitrary because the avowed purpose of formulating the amended Rules is to stop evasion of excise. In the counter-statement filed by the Government of Karnataka before the High Court of Karnataka it has set out the object of the amendment. The affidavit states : The impugned Rules have been made with the sole object of preventing leakage of excise revenue and, therefore, they are reasonable restrictions within the meaning of Article 19(6). It is submitted before us that such evasion could have been checked by other means which would have been more beneficial to or less hard on the appellants. How such evasion is to be checked, however, is a matter of policy. So long as the policy as formulated in the amended Rules is not manifestly arbitrary or wholly unreasonable, it cannot be considered as violative of Article 14. There is, in the present case, no self-evident disproportionality between the object to be achieved and the Rules which have been framed 20. It was lastly submitted that MSIL ought not to have been nominated for a distributor licence because it is not competent to discharge its obligations and does not have the necessary infrastructure. This plea was raised before the Karnataka High Court at a time when MSIL had not started functioning. It is now a fully functional authority. MSIL has stated that it has a large number of depots in various districts of the State and is already handling very substantial business. This plea, therefore, merits no further consideration. In any event, some problems with the discharge of its duties by MSIL will not render the amended Rules providing for a distributor licence arbitrary or violative of Article 14
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the State for export sales or inter-State sales is a matter of policy. Granting of such concession or absence of such concession cannot make the rule itself manifestly arbitrary or unreasonable. If the appellants are aggrieved by the existing Rules or would like a similar concession to be extended to sales which are to be made to MSIL in respect of export orders or orders for supply outside the State received by it, it is open to them to make a suitable representation to the State Government. The absence of availability of such a concession, however, cannot make the Rules arbitrary or violative of Article 14. All manufacturers and suppliers within the State of Karnataka are governed by the same Rules and will, therefore, have to pay the same taxes. All persons who are similarly situated are similarly affected by the amended Rules. There is, therefore, no discrimination under Article 14 in its traditional senseTherefore, the exclusive right or privilege of manufacture, storage, sale, import and export of liquor through any agency other than the State would be subject to the rigours of Article 14. We respectfully agree with these observations. In the present case, however, there is no violation of Article 14How such evasion is to be checked, however, is a matter of policy. So long as the policy as formulated in the amended Rules is not manifestly arbitrary or wholly unreasonable, it cannot be considered as violative of Article 14. There is, in the present case, no self-evident disproportionality between the object to be achieved and the Rules which have been framedThis plea was raised before the Karnataka High Court at a time when MSIL had not started functioning. It is now a fully functional authority. MSIL has stated that it has a large number of depots in various districts of the State and is already handling very substantial business. This plea, therefore, merits no further consideration. In any event, some problems with the discharge of its duties by MSIL will not render the amended Rules providing for a distributor licence arbitrary or violative of Article 14Thus the State Government is authorised to levy fees for various kinds of permits or licences which may be required for activities connected with the manufacture, supply or sale of liquor. Labelling of liquor bottles with brand labels is an essential activity connected with the sale and distribution of different varieties of liquor manufactured in the State by different manufacturers or imported into or exported outside the State. Different varieties of liquor produced by various manufacturers are thus identified for purchase or sale. It is, therefore, permissible for the State Government under the Andhra Pradesh Excise Act, 1968 to levy fees for approval of different varieties of labels to be affixed to liquor bottles for the purpose of distribution and sale of liquor. The amendments are within the rule-making power of the State Government. In fact prior to these amendments, a fee of Rs 100 was being charged for approval of labels. It is nobodys case that the fee was beyond the rule-making power under Section 72 of the ActSLPs (C) Nos. 13817-13828 of 199326. It is also contended that the fee of Rs 25, 000 for the approval of any one variety of labels is exorbitant and totally disproportionate to the work involved.Therefore, such levy violates Article 14. But, in this connection, it is necessary to bear in mind that the State under its regulatory powers has the right even to prohibit absolutely every form of activity in relation to intoxicants, its manufactures, storage, export, import, sale or possession. In all these respects the right to regulate these activities or to carry on these activities vests in the State. When, therefore, such rights and parted with, it is open to the State to part with such rights for a consideration. The fee for approval of labels is an aspect of the right to sell or distribute liquor which right the State Government has parted with for consideration in the form of a fee. The increase in the fee from Rs 100 to Rs 25, 000 may appear, at first glance, to be exorbitant. But it constitutes an extremely small percentage of the total turnover of various products to which these labels are affixed. The fee for approval cannot, therefore, be considered as exorbitant or its imposition wholly arbitrary. It is not the case of the petitioners that their trade in liquor is seriously affected by the levy of this increased fee. In the case of Har Shankar v. Dy. Excise & Taxation Commr. [ 1975 (1) SCC 737 : 1975 (3) SCR 254 ] (SCR at p. 278) this Court upheld the right of the State to prohibit absolutely all forms of activities in relation to intoxicants. It said that the wider right to prohibit absolutely would include the narrower right to permit dealing in intoxicants on such terms of general application as the State deems expedient. The Court said that the Government has the power to charge a price for parting with its rights. It also further observed that the licence fee which the State Government charged to the licensee through the medium of auctions or the fixed fee which was charged to the vendors of foreign liquor holding licences need bear no quid pro quo to the services rendered to the licensees. The word fee in this context is not used in the technical sense of the expression. By licence fee or fixed fee is meant the price or consideration which the Government charges to the licensees for parting with its privileges and granting them to the licensees. As the State can carry on a trade or business, such a charge is the normal incidence of a trading or business transaction. The contention, therefore, of the petitioners that there is no quid pro quo between the increased label fee and the services rendered also has no merit. It is based upon a misconception of the nature of the levy
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M/S. S. K. G. Sugar Ltd Vs. State Of Bihar And Ors | 1955 did not receive the assent of the President, and, therefore, being repugnant to certain provisions of the Central Act, it could not have any effect, and it was void on this ground as well."20. The observations extracted above, though very widely expressed, must be confined to the precise points for determination that had arisen in those cases. These observations were apparently made in the context of those matters in the Bihar Act which were either referable to Entry 52, Union List or Entry 33, Concurrent List. In neither of those case, the High Court, was concerned with the validity of the taxing provisions of the Bihar Act, covered by Entry 52 of the State List. In A. K. Jains case (supra), 1968 Pat LJR 179 the only question that fell for determination was, whether Sections 3 and 7 of the Central Act 10 of 1955 and Clause 3 (iii) of the Sugar Control Order 1955 issued under that Act, were valid and within the legislative competence of Parliament. It was contended that the regulation of price of sugarcane was expressly dealt with by Bihar Act 7 of 1937 and the action taken against the petitioners by the police and the Magistrate was without jurisdiction being in contravention of Bihar Act and the rules framed thereunder. Thus only that part of the Bihar Act came up for consideration which related to Entry 33 of the Concurrent List, and which only could be said to be inconsistent with the Central Act. No question of the validity of the taxing provisions of the Bihar Act arose in that case.21. Even the High Court found that the matters relatable to Entry 33, Concurrent List were severable from the other provisions of the Act. Before us also it has not been seriously urged that the taxing provisions of the Bihar Act were so interwoven and inextricably connected with the provisions referable to Entry 33 List III, that the whole Act would stand or fall together. There was no competition or collision between the taxing provisions of the Bihar Act and those of the Central Act. The two exist side by side and each remains operative in its own distinct field without interfering with the other.22.It will bear repetition that the taxing provisions of the Bihar Act were advisely kept out of the purview of S. 16(1)(b) of the Central Act which repealed the State laws only in so far as they controlled or authorised control of the production, supply and distribution of sugarcane. The taxing provisions of the Bihar Act therefore were neither rendered inoperative by Article 254 (1), nor repealed or altered by the competent Legislature within the contemplation of Art. 372 of the Constitution.23. It is important to recall that when A. K. Jains case came up in appeal, this Court, did not endorse the sweeping proposition sought to be spelled out by the petitioners from the wide language used by the High Court in the extracts above. The only reference to the Bihar Act, made by this Court, was as follows :".... Sub-rule (3) of Rule (3) specifically provides that unless there is an agreement in writing to the contrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days from the date of the delivery of the sugarcane. This is specific mandate. If the Bihar Act providesanything to the contrary,the same must be held to have been altered in view of Article 372 of the Constitution ..."(Emphasis added)24. Since the taxing provisions of the Bihar Act do not contain "anything contrary" to the Central Act, they could not in the light of the observations of this Court, be held to have been altered in view of Art. 372. Indeed, as pointed out already, the Court in that case was not at all concerned with the taxing provisions of the Bihar Act.25.In view of the above discussion the conclusion is inescapable that the taxing provisions of the Bihar Act 7 of 1937, as re-enacted permanently by Bihar Act 7 of 1955, continued to be operative and validity in force at all material times, even after the enactment of the Central Act. Further, the successive Ordinance promulgated by the Governor validated by way of abundant caution those taxing provisions or anything done thereunder.26. It is well settled that within its competence, a Legislature has the power to make a law imposing a tax retrospectively or validate defective laws by subsequent legislation, or even past unlawful collections, the power of validation being ancillary to and included in the power to legislate on a particular subject.27. We have extracted earlier in this judgment, such validating provisions in S. 66 of the Bihar Ordinance 4 of 1969 and S. 66 (1) of the Presidents Act 8 of 1969. The language of these provisions is of the widest amplitude; and, even if it is assumed that the Central Act had cast any doubt on or introduced any infirmity in the taxing provisions of the State Act, the same had been removed or cured by Section66(1) of the Presidents Act which not only nullifies the effect, if any, of the judgment of the High Court on the taxing provisions of the Bihar Act 7 of 1937, but also validates the imposition, assessment or collection of all cesses and taxes imposed under any State law with retrospective effect as if the Presidents Act had been in force at all material times including the period in question i.e. of January, 1968.28. The validity of the impugned notification and the cess and tax imposed thereunder has to be judged with reference to the successive Ordinances and finally to the Presidents Act. By virtue of the legal fiction introduced by the validating provision in S. 66 (1), the impugned notification will be deemed to have been issued not necessarily under the Ordinance No. 3 of 1968 but under the Presidents Act, itself, deriving its legal force and validity directly from the latter.29. | 0[ds]It is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in court - see State of Punjab v. Sat Pal Dang (1969) 1 SCR 478 = (AIR 1969 SC 903 ). The contention is devoid of merit. Moreover, after the coming into force of the Presidents Act 8 of 1969, this question had become merely academic.Matter (a) was referable to Entry 33 of the Concurrent List (III) and matter (b) to Entry 52 of the State List (II) in the 7th Schedule of the Constitution which corresponds to Entry 49 of the Provincial Legislative List (List II) of the Government of India Act, 1935. The Central Act 10 of 1955 related to matter (b) only. Bihar Act 7 of 1937 and Bihar Act 7 of 1955 which purposed to reenact the former permanently, in so far as it provided for regulation of production, supply and distribution of sugarcane - a matter falling under Entry 33 of the Concurrent List - was repugnant to the Central Act 10 of 1955, and, in view of Article 254 of the Constitution, to the extent of that repugnancy or inconsistency would be void. In the light of Article 372 of the Constitution read with S. 16 (1)(b) of the Central Act, the Bihar Act would be deemed to have been repealed with effect from April 1, 1955, only in so far as, it controlled or authorised the control of the production, supply and distribution of, and trade and commerce in sugarcane. The taxing provisions of the Bihar Act were not in any way repugnant to the Central Act or any other law passed by Parliament. Those taxing provisions, as already noticed, fall under Entry 52, List II and that was why Section 16 of the Central Act confined the repeal only to those provisions which were covered by Entry 33, List III. The taxing provisions of the Bihar Act, therefore, never lost their validity and continued to be in force. The notification issued under the Bihar Acts of 1937, (and continued under the Acts of 1955 and 1963), imposing the tax or cess, also remained operative during the period in question, till it was replaced by another notification issued on January 12, 1968 under the Ordinance 3 of 1968. It is therefore, incorrect to say that there was any period, much less in January 1968, during which the tax was levied without the authority of law.Even the High Court found that the matters relatable to Entry 33, Concurrent List were severable from the other provisions of the Act. Before us also it has not been seriously urged that the taxing provisions of the Bihar Act were so interwoven and inextricably connected with the provisions referable to Entry 33 List III, that the whole Act would stand or fall together. There was no competition or collision between the taxing provisions of the Bihar Act and those of the Central Act. The two exist side by side and each remains operative in its own distinct field without interfering with thewill bear repetition that the taxing provisions of the Bihar Act were advisely kept out of the purview of S. 16(1)(b) of the Central Act which repealed the State laws only in so far as they controlled or authorised control of the production, supply and distribution of sugarcane. The taxing provisions of the Bihar Act therefore were neither rendered inoperative by Article 254 (1), nor repealed or altered by the competent Legislature within the contemplation of Art. 372 of the Constitution.Since the taxing provisions of the Bihar Act do not contain "anything contrary" to the Central Act, they could not in the light of the observations of this Court, be held to have been altered in view of Art. 372. Indeed, as pointed out already, the Court in that case was not at all concerned with the taxing provisions of the Biharview of the above discussion the conclusion is inescapable that the taxing provisions of the Bihar Act 7 of 1937, as re-enacted permanently by Bihar Act 7 of 1955, continued to be operative and validity in force at all material times, even after the enactment of the Central Act. Further, the successive Ordinance promulgated by the Governor validated by way of abundant caution those taxing provisions or anything done thereunder.It is well settled that within its competence, a Legislature has the power to make a law imposing a tax retrospectively or validate defective laws by subsequent legislation, or even past unlawful collections, the power of validation being ancillary to and included in the power to legislate on a particular subject.The validity of the impugned notification and the cess and tax imposed thereunder has to be judged with reference to the successive Ordinances and finally to the Presidents Act. By virtue of the legal fiction introduced by the validating provision in S. 66 (1), the impugned notification will be deemed to have been issued not necessarily under the Ordinance No. 3 of 1968 but under the Presidents Act, itself, deriving its legal force and validity directly from the latter. | 0 | 3,974 | 1,005 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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1955 did not receive the assent of the President, and, therefore, being repugnant to certain provisions of the Central Act, it could not have any effect, and it was void on this ground as well."20. The observations extracted above, though very widely expressed, must be confined to the precise points for determination that had arisen in those cases. These observations were apparently made in the context of those matters in the Bihar Act which were either referable to Entry 52, Union List or Entry 33, Concurrent List. In neither of those case, the High Court, was concerned with the validity of the taxing provisions of the Bihar Act, covered by Entry 52 of the State List. In A. K. Jains case (supra), 1968 Pat LJR 179 the only question that fell for determination was, whether Sections 3 and 7 of the Central Act 10 of 1955 and Clause 3 (iii) of the Sugar Control Order 1955 issued under that Act, were valid and within the legislative competence of Parliament. It was contended that the regulation of price of sugarcane was expressly dealt with by Bihar Act 7 of 1937 and the action taken against the petitioners by the police and the Magistrate was without jurisdiction being in contravention of Bihar Act and the rules framed thereunder. Thus only that part of the Bihar Act came up for consideration which related to Entry 33 of the Concurrent List, and which only could be said to be inconsistent with the Central Act. No question of the validity of the taxing provisions of the Bihar Act arose in that case.21. Even the High Court found that the matters relatable to Entry 33, Concurrent List were severable from the other provisions of the Act. Before us also it has not been seriously urged that the taxing provisions of the Bihar Act were so interwoven and inextricably connected with the provisions referable to Entry 33 List III, that the whole Act would stand or fall together. There was no competition or collision between the taxing provisions of the Bihar Act and those of the Central Act. The two exist side by side and each remains operative in its own distinct field without interfering with the other.22.It will bear repetition that the taxing provisions of the Bihar Act were advisely kept out of the purview of S. 16(1)(b) of the Central Act which repealed the State laws only in so far as they controlled or authorised control of the production, supply and distribution of sugarcane. The taxing provisions of the Bihar Act therefore were neither rendered inoperative by Article 254 (1), nor repealed or altered by the competent Legislature within the contemplation of Art. 372 of the Constitution.23. It is important to recall that when A. K. Jains case came up in appeal, this Court, did not endorse the sweeping proposition sought to be spelled out by the petitioners from the wide language used by the High Court in the extracts above. The only reference to the Bihar Act, made by this Court, was as follows :".... Sub-rule (3) of Rule (3) specifically provides that unless there is an agreement in writing to the contrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days from the date of the delivery of the sugarcane. This is specific mandate. If the Bihar Act providesanything to the contrary,the same must be held to have been altered in view of Article 372 of the Constitution ..."(Emphasis added)24. Since the taxing provisions of the Bihar Act do not contain "anything contrary" to the Central Act, they could not in the light of the observations of this Court, be held to have been altered in view of Art. 372. Indeed, as pointed out already, the Court in that case was not at all concerned with the taxing provisions of the Bihar Act.25.In view of the above discussion the conclusion is inescapable that the taxing provisions of the Bihar Act 7 of 1937, as re-enacted permanently by Bihar Act 7 of 1955, continued to be operative and validity in force at all material times, even after the enactment of the Central Act. Further, the successive Ordinance promulgated by the Governor validated by way of abundant caution those taxing provisions or anything done thereunder.26. It is well settled that within its competence, a Legislature has the power to make a law imposing a tax retrospectively or validate defective laws by subsequent legislation, or even past unlawful collections, the power of validation being ancillary to and included in the power to legislate on a particular subject.27. We have extracted earlier in this judgment, such validating provisions in S. 66 of the Bihar Ordinance 4 of 1969 and S. 66 (1) of the Presidents Act 8 of 1969. The language of these provisions is of the widest amplitude; and, even if it is assumed that the Central Act had cast any doubt on or introduced any infirmity in the taxing provisions of the State Act, the same had been removed or cured by Section66(1) of the Presidents Act which not only nullifies the effect, if any, of the judgment of the High Court on the taxing provisions of the Bihar Act 7 of 1937, but also validates the imposition, assessment or collection of all cesses and taxes imposed under any State law with retrospective effect as if the Presidents Act had been in force at all material times including the period in question i.e. of January, 1968.28. The validity of the impugned notification and the cess and tax imposed thereunder has to be judged with reference to the successive Ordinances and finally to the Presidents Act. By virtue of the legal fiction introduced by the validating provision in S. 66 (1), the impugned notification will be deemed to have been issued not necessarily under the Ordinance No. 3 of 1968 but under the Presidents Act, itself, deriving its legal force and validity directly from the latter.29.
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It is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in court - see State of Punjab v. Sat Pal Dang (1969) 1 SCR 478 = (AIR 1969 SC 903 ). The contention is devoid of merit. Moreover, after the coming into force of the Presidents Act 8 of 1969, this question had become merely academic.Matter (a) was referable to Entry 33 of the Concurrent List (III) and matter (b) to Entry 52 of the State List (II) in the 7th Schedule of the Constitution which corresponds to Entry 49 of the Provincial Legislative List (List II) of the Government of India Act, 1935. The Central Act 10 of 1955 related to matter (b) only. Bihar Act 7 of 1937 and Bihar Act 7 of 1955 which purposed to reenact the former permanently, in so far as it provided for regulation of production, supply and distribution of sugarcane - a matter falling under Entry 33 of the Concurrent List - was repugnant to the Central Act 10 of 1955, and, in view of Article 254 of the Constitution, to the extent of that repugnancy or inconsistency would be void. In the light of Article 372 of the Constitution read with S. 16 (1)(b) of the Central Act, the Bihar Act would be deemed to have been repealed with effect from April 1, 1955, only in so far as, it controlled or authorised the control of the production, supply and distribution of, and trade and commerce in sugarcane. The taxing provisions of the Bihar Act were not in any way repugnant to the Central Act or any other law passed by Parliament. Those taxing provisions, as already noticed, fall under Entry 52, List II and that was why Section 16 of the Central Act confined the repeal only to those provisions which were covered by Entry 33, List III. The taxing provisions of the Bihar Act, therefore, never lost their validity and continued to be in force. The notification issued under the Bihar Acts of 1937, (and continued under the Acts of 1955 and 1963), imposing the tax or cess, also remained operative during the period in question, till it was replaced by another notification issued on January 12, 1968 under the Ordinance 3 of 1968. It is therefore, incorrect to say that there was any period, much less in January 1968, during which the tax was levied without the authority of law.Even the High Court found that the matters relatable to Entry 33, Concurrent List were severable from the other provisions of the Act. Before us also it has not been seriously urged that the taxing provisions of the Bihar Act were so interwoven and inextricably connected with the provisions referable to Entry 33 List III, that the whole Act would stand or fall together. There was no competition or collision between the taxing provisions of the Bihar Act and those of the Central Act. The two exist side by side and each remains operative in its own distinct field without interfering with thewill bear repetition that the taxing provisions of the Bihar Act were advisely kept out of the purview of S. 16(1)(b) of the Central Act which repealed the State laws only in so far as they controlled or authorised control of the production, supply and distribution of sugarcane. The taxing provisions of the Bihar Act therefore were neither rendered inoperative by Article 254 (1), nor repealed or altered by the competent Legislature within the contemplation of Art. 372 of the Constitution.Since the taxing provisions of the Bihar Act do not contain "anything contrary" to the Central Act, they could not in the light of the observations of this Court, be held to have been altered in view of Art. 372. Indeed, as pointed out already, the Court in that case was not at all concerned with the taxing provisions of the Biharview of the above discussion the conclusion is inescapable that the taxing provisions of the Bihar Act 7 of 1937, as re-enacted permanently by Bihar Act 7 of 1955, continued to be operative and validity in force at all material times, even after the enactment of the Central Act. Further, the successive Ordinance promulgated by the Governor validated by way of abundant caution those taxing provisions or anything done thereunder.It is well settled that within its competence, a Legislature has the power to make a law imposing a tax retrospectively or validate defective laws by subsequent legislation, or even past unlawful collections, the power of validation being ancillary to and included in the power to legislate on a particular subject.The validity of the impugned notification and the cess and tax imposed thereunder has to be judged with reference to the successive Ordinances and finally to the Presidents Act. By virtue of the legal fiction introduced by the validating provision in S. 66 (1), the impugned notification will be deemed to have been issued not necessarily under the Ordinance No. 3 of 1968 but under the Presidents Act, itself, deriving its legal force and validity directly from the latter.
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BALASORE ALLOYS LIMITED Vs. MEDIMA LLC | nearly twice as high as the budgets and estimates projected by Medima at the time of booking the contracts; 2. The quantity and quality of Products invoiced by Medima to the customers are different from the contracts signed by Medima and Balasore; 3. Interest for availing credit for delay in recovery beyond 60 days cannot be deducted as an expense; 4. Commission has to be charged on the net sales price and not the Final Sales Price. 12. A close perusal of the extracted portion would indicate that the reference made by the applicant with regard to the price and the terms of the payment governing individual contracts is with reference to the Pricing Agreement which in fact is the Agreement dated 31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would indicate that it provides for the mechanism relating purchases and sales; final price, payment of provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. On taking note of the same, a perusal of the contract terms in the purchase order relied upon by the applicant does not provide for such determination of pricing except the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. Therefore, in that circumstance the nature of dispute raised by the applicant themselves in the reply notice dated 13.04.2020 will indicate that those aspects are to be determined in terms of the provisions contained in the Agreement dated 31.03.2018 which resultantly will be relevant for payment to be made under each of the purchase order. Therefore, even if disputes are raised relating to the contract terms, the pricing, deductions etc. will relate to the main agreement and the Arbitral Tribunal constituted thereunder can go into other issues if any arises under the contract terms of the individual purchase order as well. 13. However, in an attempt to dispel such understanding, Mr. Maninder Singh, learned senior counsel sought to contend that while the respondent relies on the Pricing Agreement dated 31.03.2018, the transaction in fact had commenced as far back as on 08.08.2017 and 21 purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018, the date on which the Pricing Agreement was executed and as such the same cannot be deemed to have applied to the earlier purchase orders. Though such contention is put forth we are unable to accept the same since Clause-20(a) of the Agreement dated 31.03.2018 provides that the Agreement shall commence on 31.03.2017 and end on 31.03.2021 which clearly indicates that it was the intention of the parties that the terms contained in the Agreement would govern all transactions, including those which had commenced from 08.08.2017. Further it is noticed that the parties were earlier governed by an Agreement dated 19.06.2017 which was for a fixed quantity of 2000 MT of the produce while the present agreement, according to the parties was on a long term basis fixing the time period for which it was valid and the individual purchase orders will have to be taken note for the specific quantity ordered for under each of the transactions, the price of which was to be ultimately determined as provided under the Pricing Agreement. 14. In that view of the matter, when admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus ad-idem to the terms and conditions contained therein which is comprehensive and encompassing all terms of the transaction and such agreement also contains an arbitration clause which is different from the arbitration clause provided in the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in Clause-23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc. In that view, it would not be appropriate for the applicant to invoke Clause-7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020. SLP(C) No.10264/2020 15. The instant Special Leave Petition is filed by the petitioner who is the plaintiff in the Commercial Suit No.59/2020 pending before the High Court of Calcutta. The petitioner herein is the petitioner in Arbitration Application No.15/2020 which is dealt with hereinabove. The facts noticed above while dealing with Arbitration application also discloses that the Arbitral Tribunal comprising of three arbitrators has been appointed by the ICC through the communication dated 22.06.2020. The Tribunal has been constituted based on the clause providing for arbitration under the Agreement dated 13.03.2018. The petitioner claiming to be aggrieved by the constitution of the Arbitral Tribunal has filed the suit seeking a decree of declaration that the arbitration clause-23 of the Pricing Agreement dated 31.03.2018 is null and void and in that context has sought for the ancillary relief in the suit. In the said suit the petitioner has moved the Notice of Motion seeking for an interlocutory order of injunction against the Arbitral Tribunal constituted by the ICC. The learned Single Judge through a detailed judgment dated 12.08.2020 has rejected the prayer for interim order and the Notice of Motion has been dismissed. The petitioner claiming to be aggrieved by the said order had preferred an appeal to the Division Bench, which on consideration has declined grant of interim order though the appeal has been admitted for consideration. 16. Having heard the learned senior counsel and having perused the orders impugned we see no reason to interfere with the same, more particularly keeping in view our conclusion on the same subject matter while addressing the rival contentions in the Arbitration Application No.15/2020. | 0[ds]7. Since the transaction entered into between the parties and the dispute having arisen not being in dispute; further the above extracted arbitration clause being explicit; in a normal circumstance no other consideration would have been necessary in the limited scope for consideration in an application under Section 11 of the Act, 1996. However, in the case on hand the fact remains that undisputedly an Agreement dated 31.03.2018 is also entered into between the parties relating to the very same transaction which is referred to as the Umbrella Agreement by the respondent and as Pricing Agreement by the applicant. The said agreement also makes provision for resolution of disputes through arbitration in the manner as indicated therein.In that regard a perusal of the documents will reveal that in the case on hand the applicant had not initiated the process of invoking the arbitration clause. On the other hand a notice dated 13.03.2020 (Annexure A-41) was issued on behalf of the respondent by its attorney to the applicant referring to the breach of the agreement dated 31.03.2018 (Umbrella agreement/Pricing agreement) and as per the procedure provided under Clause-23 of the said agreement an opportunity was provided to amicably resolve the matter; failing which it was indicated that the respondent would approach the International Chamber of Commerce (ICC) in 30 days. It is in reply to the said notice dated 13.03.2020 issued by the Respondent on 13.04.2020, the applicant herein disputed the claim put forth by the respondent under the Agreement dated 31.03.2018 referring to it as the Pricing Agreement. Further, the applicant thereafter referred to the nature of their claim and thereon proceeded to indicate that the constitution of the Arbitral Tribunal and conduct of arbitration proceeding shall be in accordance with Clause-7 of the contract terms forming part of and governing all individual contracts.10. In the above backdrop, when both, the purchase order as also the Pricing Agreement subsists and both the said documents contain the arbitration clauses which are not similar to one another, in order to determine the nature of the arbitral proceedings the said two documents will have to be read in harmony or reconciled so as to take note of the nature of the dispute that had arisen between the parties which would require resolution through arbitration and thereafter arrive at the conclusion as to whether the instant application filed under Section 11 of the Act, 1996 would be sustainable so as to appoint an arbitrator by invoking Clause-7 of the purchase order; more particularly in a situation where the Arbitral Tribunal has already been constituted in terms of Clause-23 of the agreement dated 31.03.2018.11. To determine this aspect, apart from the fact that the respondent was the first to invoke the arbitration clause with reference to the Agreement dated 31.03.2018, it is noticed that in the reply dated 13.04.2020 issued by the applicant it is in the nature of invocation of the arbitration clause by the applicant.It would be appropriate to take note of the contents in paras 6, 7, 8 and 9 thereof which is the crux of the dispute that would require resolution through arbitration12. A close perusal of the extracted portion would indicate that the reference made by the applicant with regard to the price and the terms of the payment governing individual contracts is with reference to the Pricing Agreement which in fact is the Agreement dated 31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would indicate that it provides for the mechanism relating purchases and sales; final price, payment of provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. On taking note of the same, a perusal of the contract terms in the purchase order relied upon by the applicant does not provide for such determination of pricing except the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. Therefore, in that circumstance the nature of dispute raised by the applicant themselves in the reply notice dated 13.04.2020 will indicate that those aspects are to be determined in terms of the provisions contained in the Agreement dated 31.03.2018 which resultantly will be relevant for payment to be made under each of the purchase order. Therefore, even if disputes are raised relating to the contract terms, the pricing, deductions etc. will relate to the main agreement and the Arbitral Tribunal constituted thereunder can go into other issues if any arises under the contract terms of the individual purchase order as well.13. However, in an attempt to dispel such understanding, Mr. Maninder Singh, learned senior counsel sought to contend that while the respondent relies on the Pricing Agreement dated 31.03.2018, the transaction in fact had commenced as far back as on 08.08.2017 and 21 purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018, the date on which the Pricing Agreement was executed and as such the same cannot be deemed to have applied to the earlier purchase orders. Though such contention is put forth we are unable to accept the same since Clause-20(a) of the Agreement dated 31.03.2018 provides that the Agreement shall commence on 31.03.2017 and end on 31.03.2021 which clearly indicates that it was the intention of the parties that the terms contained in the Agreement would govern all transactions, including those which had commenced from 08.08.2017. Further it is noticed that the parties were earlier governed by an Agreement dated 19.06.2017 which was for a fixed quantity of 2000 MT of the produce while the present agreement, according to the parties was on a long term basis fixing the time period for which it was valid and the individual purchase orders will have to be taken note for the specific quantity ordered for under each of the transactions, the price of which was to be ultimately determined as provided under the Pricing Agreement.14. In that view of the matter, when admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus ad-idem to the terms and conditions contained therein which is comprehensive and encompassing all terms of the transaction and such agreement also contains an arbitration clause which is different from the arbitration clause provided in the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in Clause-23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc.In that view, it would not be appropriate for the applicant to invoke Clause-7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020.16. Having heard the learned senior counsel and having perused the orders impugned we see no reason to interfere with the same, more particularly keeping in view our conclusion on the same subject matter while addressing the rival contentions in the Arbitration Application No.15/2020. | 0 | 3,771 | 1,288 | ### Instruction:
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nearly twice as high as the budgets and estimates projected by Medima at the time of booking the contracts; 2. The quantity and quality of Products invoiced by Medima to the customers are different from the contracts signed by Medima and Balasore; 3. Interest for availing credit for delay in recovery beyond 60 days cannot be deducted as an expense; 4. Commission has to be charged on the net sales price and not the Final Sales Price. 12. A close perusal of the extracted portion would indicate that the reference made by the applicant with regard to the price and the terms of the payment governing individual contracts is with reference to the Pricing Agreement which in fact is the Agreement dated 31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would indicate that it provides for the mechanism relating purchases and sales; final price, payment of provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. On taking note of the same, a perusal of the contract terms in the purchase order relied upon by the applicant does not provide for such determination of pricing except the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. Therefore, in that circumstance the nature of dispute raised by the applicant themselves in the reply notice dated 13.04.2020 will indicate that those aspects are to be determined in terms of the provisions contained in the Agreement dated 31.03.2018 which resultantly will be relevant for payment to be made under each of the purchase order. Therefore, even if disputes are raised relating to the contract terms, the pricing, deductions etc. will relate to the main agreement and the Arbitral Tribunal constituted thereunder can go into other issues if any arises under the contract terms of the individual purchase order as well. 13. However, in an attempt to dispel such understanding, Mr. Maninder Singh, learned senior counsel sought to contend that while the respondent relies on the Pricing Agreement dated 31.03.2018, the transaction in fact had commenced as far back as on 08.08.2017 and 21 purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018, the date on which the Pricing Agreement was executed and as such the same cannot be deemed to have applied to the earlier purchase orders. Though such contention is put forth we are unable to accept the same since Clause-20(a) of the Agreement dated 31.03.2018 provides that the Agreement shall commence on 31.03.2017 and end on 31.03.2021 which clearly indicates that it was the intention of the parties that the terms contained in the Agreement would govern all transactions, including those which had commenced from 08.08.2017. Further it is noticed that the parties were earlier governed by an Agreement dated 19.06.2017 which was for a fixed quantity of 2000 MT of the produce while the present agreement, according to the parties was on a long term basis fixing the time period for which it was valid and the individual purchase orders will have to be taken note for the specific quantity ordered for under each of the transactions, the price of which was to be ultimately determined as provided under the Pricing Agreement. 14. In that view of the matter, when admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus ad-idem to the terms and conditions contained therein which is comprehensive and encompassing all terms of the transaction and such agreement also contains an arbitration clause which is different from the arbitration clause provided in the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in Clause-23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc. In that view, it would not be appropriate for the applicant to invoke Clause-7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020. SLP(C) No.10264/2020 15. The instant Special Leave Petition is filed by the petitioner who is the plaintiff in the Commercial Suit No.59/2020 pending before the High Court of Calcutta. The petitioner herein is the petitioner in Arbitration Application No.15/2020 which is dealt with hereinabove. The facts noticed above while dealing with Arbitration application also discloses that the Arbitral Tribunal comprising of three arbitrators has been appointed by the ICC through the communication dated 22.06.2020. The Tribunal has been constituted based on the clause providing for arbitration under the Agreement dated 13.03.2018. The petitioner claiming to be aggrieved by the constitution of the Arbitral Tribunal has filed the suit seeking a decree of declaration that the arbitration clause-23 of the Pricing Agreement dated 31.03.2018 is null and void and in that context has sought for the ancillary relief in the suit. In the said suit the petitioner has moved the Notice of Motion seeking for an interlocutory order of injunction against the Arbitral Tribunal constituted by the ICC. The learned Single Judge through a detailed judgment dated 12.08.2020 has rejected the prayer for interim order and the Notice of Motion has been dismissed. The petitioner claiming to be aggrieved by the said order had preferred an appeal to the Division Bench, which on consideration has declined grant of interim order though the appeal has been admitted for consideration. 16. Having heard the learned senior counsel and having perused the orders impugned we see no reason to interfere with the same, more particularly keeping in view our conclusion on the same subject matter while addressing the rival contentions in the Arbitration Application No.15/2020.
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of Commerce (ICC) in 30 days. It is in reply to the said notice dated 13.03.2020 issued by the Respondent on 13.04.2020, the applicant herein disputed the claim put forth by the respondent under the Agreement dated 31.03.2018 referring to it as the Pricing Agreement. Further, the applicant thereafter referred to the nature of their claim and thereon proceeded to indicate that the constitution of the Arbitral Tribunal and conduct of arbitration proceeding shall be in accordance with Clause-7 of the contract terms forming part of and governing all individual contracts.10. In the above backdrop, when both, the purchase order as also the Pricing Agreement subsists and both the said documents contain the arbitration clauses which are not similar to one another, in order to determine the nature of the arbitral proceedings the said two documents will have to be read in harmony or reconciled so as to take note of the nature of the dispute that had arisen between the parties which would require resolution through arbitration and thereafter arrive at the conclusion as to whether the instant application filed under Section 11 of the Act, 1996 would be sustainable so as to appoint an arbitrator by invoking Clause-7 of the purchase order; more particularly in a situation where the Arbitral Tribunal has already been constituted in terms of Clause-23 of the agreement dated 31.03.2018.11. To determine this aspect, apart from the fact that the respondent was the first to invoke the arbitration clause with reference to the Agreement dated 31.03.2018, it is noticed that in the reply dated 13.04.2020 issued by the applicant it is in the nature of invocation of the arbitration clause by the applicant.It would be appropriate to take note of the contents in paras 6, 7, 8 and 9 thereof which is the crux of the dispute that would require resolution through arbitration12. A close perusal of the extracted portion would indicate that the reference made by the applicant with regard to the price and the terms of the payment governing individual contracts is with reference to the Pricing Agreement which in fact is the Agreement dated 31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would indicate that it provides for the mechanism relating purchases and sales; final price, payment of provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. On taking note of the same, a perusal of the contract terms in the purchase order relied upon by the applicant does not provide for such determination of pricing except the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. Therefore, in that circumstance the nature of dispute raised by the applicant themselves in the reply notice dated 13.04.2020 will indicate that those aspects are to be determined in terms of the provisions contained in the Agreement dated 31.03.2018 which resultantly will be relevant for payment to be made under each of the purchase order. Therefore, even if disputes are raised relating to the contract terms, the pricing, deductions etc. will relate to the main agreement and the Arbitral Tribunal constituted thereunder can go into other issues if any arises under the contract terms of the individual purchase order as well.13. However, in an attempt to dispel such understanding, Mr. Maninder Singh, learned senior counsel sought to contend that while the respondent relies on the Pricing Agreement dated 31.03.2018, the transaction in fact had commenced as far back as on 08.08.2017 and 21 purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018, the date on which the Pricing Agreement was executed and as such the same cannot be deemed to have applied to the earlier purchase orders. Though such contention is put forth we are unable to accept the same since Clause-20(a) of the Agreement dated 31.03.2018 provides that the Agreement shall commence on 31.03.2017 and end on 31.03.2021 which clearly indicates that it was the intention of the parties that the terms contained in the Agreement would govern all transactions, including those which had commenced from 08.08.2017. Further it is noticed that the parties were earlier governed by an Agreement dated 19.06.2017 which was for a fixed quantity of 2000 MT of the produce while the present agreement, according to the parties was on a long term basis fixing the time period for which it was valid and the individual purchase orders will have to be taken note for the specific quantity ordered for under each of the transactions, the price of which was to be ultimately determined as provided under the Pricing Agreement.14. In that view of the matter, when admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus ad-idem to the terms and conditions contained therein which is comprehensive and encompassing all terms of the transaction and such agreement also contains an arbitration clause which is different from the arbitration clause provided in the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in Clause-23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc.In that view, it would not be appropriate for the applicant to invoke Clause-7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020.16. Having heard the learned senior counsel and having perused the orders impugned we see no reason to interfere with the same, more particularly keeping in view our conclusion on the same subject matter while addressing the rival contentions in the Arbitration Application No.15/2020.
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Avery India Limited Vs. The Second Industrial Tribunal, West Bengal | In other words, counsel argued that even if the High Court applied the correct law as laid down in the rulings cited above, it could not have quashed that part of the award, for the age of superannuation of all the workmen in the employment of the appellant was raised to 58 by the award and that although the 2nd respondent was not a workmen when the award became operative, the award was binding on him as he was a party to the dispute, under S.18(3) of the Industrial Dispute Act, 1947, hereinafter called the Act. Counsel submitted that the 3rd respondent, the union, was a party to the dispute which means that all the workmen in the establishment were parties to the dispute as regard the age of retirement, and the award, in so far as it raised the age of retirement to 58, would bind all persons who were employed in the establishment to which the dispute related on the date of the dispute. 10. Section18(3) of the Act provides :"18. (3). - A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of Section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on - (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so sommoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part." On the other hand, it was contended on behalf of the appellant, that the only question referred to the Tribunal so far as the 2nd respondent was concerned, was whether his superannuation at the age of 55 was justified and the only case put forward by the union before the Tribunal was whether the provision in the standing orders fixing the age of retirement at 55 would bind him as he was employed before the standing orders came into force in the concern. And as that was the only question raised and considered by the Tribunal and the High Court, it is not open to this Court, in this appeal to enlarge the scope of the controversy and go into the question whether the second respondent could sustain the award on any other ground not decided in his favour by the Tribunal or the High Court. It was further contended on behalf of the appellant that since no date was specified in the award for its coming into operation, it came into operation when it became enforceable as provided in S.17A(1) by virtue of S.17A(4) of the Act and since the 2nd respondent had retired on September 1, 1962, long before the award became operative, even though the award raised the retirement age of all the workmen in the concern to 58, the 2nd respondent cannot get the benefit of the enhanced age of retirement. In other words, the argument was that the award had no retrospective operation and since the award conferred the benefit of the enhanced age of retirement only on the workers in the establishment on the date the award came into operation and since the 2nd respondent was made to retire in accordance with the retirement age as specified in the standing orders of the company and had ceased to be a workman on the date when the award became operative, the award did not confer upon the 2nd respondent any benefit in respect of his age of retirement. 11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act. 12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959 - II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in the counter-affidavit filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based. | 1[ds]8. The only question which should normally arise in this appeal is whether the view of the High Court, that the provision in the standing orders regarding the age of retirement of the workmen of they would not govern the 2nd respondent who was employed prior to the coming into force of the standing orders, can be sustained.The view of the High Court that the provision in the standing orders regarding retirement age cannot bind the workmen who were employed in the establishment prior to the coming into force of the standing orders cannot stand in the light of the decision of this Court in Agra Electric Supply Co. Ltd. v. Alladin and others, [1969II L.L.J. 540]; (1970)1 S.C.R. 808, Salem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union, [1966I L.L.J. 443]; (1966)2 S.C.R. 498, and The United Provinces Electric Supply Co. Ltd., Allahabad v. T. N. Chatterjee and others, [1972II L.L.J. 9]11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in thet filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based. | 1 | 2,502 | 523 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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In other words, counsel argued that even if the High Court applied the correct law as laid down in the rulings cited above, it could not have quashed that part of the award, for the age of superannuation of all the workmen in the employment of the appellant was raised to 58 by the award and that although the 2nd respondent was not a workmen when the award became operative, the award was binding on him as he was a party to the dispute, under S.18(3) of the Industrial Dispute Act, 1947, hereinafter called the Act. Counsel submitted that the 3rd respondent, the union, was a party to the dispute which means that all the workmen in the establishment were parties to the dispute as regard the age of retirement, and the award, in so far as it raised the age of retirement to 58, would bind all persons who were employed in the establishment to which the dispute related on the date of the dispute. 10. Section18(3) of the Act provides :"18. (3). - A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of Section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on - (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so sommoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part." On the other hand, it was contended on behalf of the appellant, that the only question referred to the Tribunal so far as the 2nd respondent was concerned, was whether his superannuation at the age of 55 was justified and the only case put forward by the union before the Tribunal was whether the provision in the standing orders fixing the age of retirement at 55 would bind him as he was employed before the standing orders came into force in the concern. And as that was the only question raised and considered by the Tribunal and the High Court, it is not open to this Court, in this appeal to enlarge the scope of the controversy and go into the question whether the second respondent could sustain the award on any other ground not decided in his favour by the Tribunal or the High Court. It was further contended on behalf of the appellant that since no date was specified in the award for its coming into operation, it came into operation when it became enforceable as provided in S.17A(1) by virtue of S.17A(4) of the Act and since the 2nd respondent had retired on September 1, 1962, long before the award became operative, even though the award raised the retirement age of all the workmen in the concern to 58, the 2nd respondent cannot get the benefit of the enhanced age of retirement. In other words, the argument was that the award had no retrospective operation and since the award conferred the benefit of the enhanced age of retirement only on the workers in the establishment on the date the award came into operation and since the 2nd respondent was made to retire in accordance with the retirement age as specified in the standing orders of the company and had ceased to be a workman on the date when the award became operative, the award did not confer upon the 2nd respondent any benefit in respect of his age of retirement. 11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act. 12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959 - II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in the counter-affidavit filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based.
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8. The only question which should normally arise in this appeal is whether the view of the High Court, that the provision in the standing orders regarding the age of retirement of the workmen of they would not govern the 2nd respondent who was employed prior to the coming into force of the standing orders, can be sustained.The view of the High Court that the provision in the standing orders regarding retirement age cannot bind the workmen who were employed in the establishment prior to the coming into force of the standing orders cannot stand in the light of the decision of this Court in Agra Electric Supply Co. Ltd. v. Alladin and others, [1969II L.L.J. 540]; (1970)1 S.C.R. 808, Salem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union, [1966I L.L.J. 443]; (1966)2 S.C.R. 498, and The United Provinces Electric Supply Co. Ltd., Allahabad v. T. N. Chatterjee and others, [1972II L.L.J. 9]11. We do not think it necessary to decide the interesting question that in view of the fact that the award became operative only in 1964, whether the 2nd respondent, who was made to retire in 1962 in accordance with the provision in the standing orders then in force, was entitled to get the benefit of the retirement age fixed by the award, on the ground that the award was binding on him and the appellant by virtue of S.18(3) of the Act12. It is clear from the award that the Tribunal did not order the reinstatement of the 2nd respondent on the ground that he was entitled to the benefit of the enhanced retirement age conferred on all categories of workers in the establishment by the award. The only ground on which the Tribunal ordered the reinstatement was that the 2nd respondent was employed in the concern prior to the coming into force of the standing orders, and, therefore, the provision in the standing orders fixing the age of retirement at 55 was not binding on him in the light of the decision of this Court in Guest, Keen, Williams Private Ltd. v. P. J. Sterling and others, [1959II L.L.J. 405]; (1960) 1 S.C.R. 348. The 2nd respondent did not support the award in respect of his reinstatement in thet filed by him in the High Court in answer to the writ petition of the appellant on the ground that he was entitled to the award and, for that reason, the direction for his reinstatement was in any event justified. We will be allowing the 2nd respondent to take a new plea in this Court if we are to say that the order of reinstatement was justified on some ground other than the one on which the award was based.
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P. Purushottam Reddy Vs. M/S. Pratap Steels Ltd | form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (e) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise in as much as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(e) of the Specific Relief Act was complied with or nor and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not - in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material in as much as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration ad decision. 12. Assuming that there was any deficiency in the pleadings and also an omission on the part of the trial court to frame a specific issue, the present one is a case where the applicability of the law laid down by this court in Nagubai Ammal & Ors. vs. R. Shama Rao & Ors., AIR 1956 SC 593 was squarely attracted. In Nagubai case this court was called upon the examine if the plea of lis pendens was not open to the plaintiff on the ground that it had not been raised in the pleadings. Neither the plaint nor the reply statement of the plaintiff contained any averment that the sale was affected by the rule of lis pendens. There was no specific issue directed to that question. However, evidence was adduced by the plaintiff on the plea of lis pendens and nor objected to by the defendants. The question was argued and tested by taking into consideration the evidence that the proceedings were collusive in character with a view to avoid operation of Section 52 of the I.P. Act. This court felt satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon and fully availed themselves of the opportunity. This court formed the opinion that in the circumstances of the case, absence of a specific pleading on the question was a mere irregularity which resulted in no prejudice to the defendants. After having noticed the rule of pleadings as applicable to civil law that "no amount of evidence can be looked into upon a plea which was never put towards", this court held, "The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present in the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issues has been framed thereon, and adduce evidence relating thereto". 13. In the case before us it was not the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial court in discharging its obligation of framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific issue. It was nobodys case that any evidence, oral or documentary, was excluded or not allowed to be taken on record by the trial court. The very fact that the defendant-appellants have come up to this court laying challenge to the order of remand shows that the appellants are not interested in remand and do not want any additional issue to be framed or to adduce any further evidence. One of the pleas taken by the appellants in the memo of special leave petition is that the High Court had erred in remanding the matter back for fresh trial and the High Court had failed to appreciate that there was sufficient material on record to show absence of readiness and willingness on the part of the plaintiff to perform its part of the contract. On the other hand, after the passing of the impugned order of remand the plaintiff-respondent has also, through his counsel, filed a memo before the trial court on 18.2.2000 submitting that on the additional issues framed pursuant to the direction of the High Court, the evidence on behalf of the plaintiff was already on record and the plaintiff would lead rebuttal evidence only if any evidence was adduced by the defendants. Thus the plaintiff is also not desirous of adducing any additional evidence on the issues.14. The subsequent events which are material and ought to be noticed by the appellate court are only two, i.e. (i) communication of the order of the competent authority (Urban Land Ceiling) holding the land of the appellants to be within ceiling limits, and (ii) order of BIFR holding the plaintiff-respondent to be a sick company. These two events are subject matter of documentary evidence and almost admitted between the parties. The High Court can be requested to take note of such subsequent events by bringing the relevant documents on record which being public documents would not require any formal proof. The High Court may take note of such subsequent events and test the validity of judgment under appeal by reference to those events also or mould the relief suitably and as may be considered necessary. | 1[ds]3. A perusal of the order of remand made by the High Court shows that on behalf of the appellants six contentions were raised: (i) that the suit was not maintainable as the pleadings did not conform to the requirements of Forms 47 and 48 of the Appendix A of the Code of Civil Procedure; (ii) that there was no pleading in the plaint that the plaintiffrespondent had always been ready and willing to perform his part of the contract and continued to be so; and on the contrary the conduct of the respondent showed the absence of such readiness and willingness: (iii) that the agreement became inoperative and unenforceable on 30th June, 1998 and therefore was rendered incapable of specific performance; (iv) that the grant of relief of specific performance was discretionary, which the facts and circumstances of the case did not permit being exercised in favour of the(v) that the respondent had not approached the Court with clean hands and therefore was not entitled to the discretionary and equitable relief of specific performance; and (vi) that the respondent was not financially sound and therefore was not in a position to perform his part of the contract.On an analysis of several recitals of the agreement dated 31.10.1987 and of the law the High Court concluded that time was not the essence of the contract and therefore the factum of not obtaining the clearance under the ULCRA by the appellant within the time appointed did not render the agreement inoperative and unenforceable. The High Court also held that the six months time appointed by the agreement could not be said to have been extended by acquiescence and implied consent on the part of the appellant. The High Court then proceeded to examine the crucial questionwhether the respondent was ready and willing to perform his part of the contract and the pleading in that regard as contained in the plaint.The High Court noticed that there was no specific issue framed by the Trial Court as to such a plea. The High Court also noticed that in the written statement there was no plea taken that the suit for specific performance was not maintainable forwith Forms 47 and 48 of Appendix A of the Code of Civil Procedure. Having stated of the High Court felt the need of framing three additional issues, viz., (i) whether the suit is maintainable; (ii) whether the plaintiff is ready and willing to perform his part of the contract, and (iii) whether the plaintiff is entitled for specific of the contract. Having formed that opinion the High Court set aside the judgment and decree of the Trial Court framed the three issues as abovesaid, allowed liberty to the parties for adducing in the trial court such evidence as was necessary on the abovesaid issues without amending the pleadings and sent the matter back to the Trial Court. The High Court also left it open to the Trial Court to take into account the subsequent events.11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A of CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (e) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise in as much as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(e) of the Specific Relief Act was complied with or nor and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or notin law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material in as much as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration ad decision.In the case before us it was not the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial court in discharging its obligation of framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific issue. It was nobodys case that any evidence, oral or documentary, was excluded or not allowed to be taken on record by the trial court. The very fact that thehave come up to this court laying challenge to the order of remand shows that the appellants are not interested in remand and do not want any additional issue to be framed or to adduce any further evidence. One of the pleas taken by the appellants in the memo of special leave petition is that the High Court had erred in remanding the matter back for fresh trial and the High Court had failed to appreciate that there was sufficient material on record to show absence of readiness and willingness on the part of the plaintiff to perform its part of the contract. On the other hand, after the passing of the impugned order of remand thehas also, through his counsel, filed a memo before the trial court on 18.2.2000 submitting that on the additional issues framed pursuant to the direction of the High Court, the evidence on behalf of the plaintiff was already on record and the plaintiff would lead rebuttal evidence only if any evidence was adduced by the defendants. Thus the plaintiff is also not desirous of adducing any additional evidence on the issues.14. The subsequent events which are material and ought to be noticed by the appellate court are only two, i.e. (i) communication of the order of the competent authority (Urban Land Ceiling) holding the land of the appellants to be within ceiling limits, and (ii) order of BIFR holding theto be a sick company. These two events are subject matter of documentary evidence and almost admitted between the parties. The High Court can be requested to take note of such subsequent events by bringing the relevant documents on record which being public documents would not require any formal proof. The High Court may take note of such subsequent events and test the validity of judgment under appeal by reference to those events also or mould the relief suitably and as may be considered necessary. | 1 | 4,145 | 1,440 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (e) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise in as much as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(e) of the Specific Relief Act was complied with or nor and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not - in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material in as much as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration ad decision. 12. Assuming that there was any deficiency in the pleadings and also an omission on the part of the trial court to frame a specific issue, the present one is a case where the applicability of the law laid down by this court in Nagubai Ammal & Ors. vs. R. Shama Rao & Ors., AIR 1956 SC 593 was squarely attracted. In Nagubai case this court was called upon the examine if the plea of lis pendens was not open to the plaintiff on the ground that it had not been raised in the pleadings. Neither the plaint nor the reply statement of the plaintiff contained any averment that the sale was affected by the rule of lis pendens. There was no specific issue directed to that question. However, evidence was adduced by the plaintiff on the plea of lis pendens and nor objected to by the defendants. The question was argued and tested by taking into consideration the evidence that the proceedings were collusive in character with a view to avoid operation of Section 52 of the I.P. Act. This court felt satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon and fully availed themselves of the opportunity. This court formed the opinion that in the circumstances of the case, absence of a specific pleading on the question was a mere irregularity which resulted in no prejudice to the defendants. After having noticed the rule of pleadings as applicable to civil law that "no amount of evidence can be looked into upon a plea which was never put towards", this court held, "The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present in the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issues has been framed thereon, and adduce evidence relating thereto". 13. In the case before us it was not the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial court in discharging its obligation of framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific issue. It was nobodys case that any evidence, oral or documentary, was excluded or not allowed to be taken on record by the trial court. The very fact that the defendant-appellants have come up to this court laying challenge to the order of remand shows that the appellants are not interested in remand and do not want any additional issue to be framed or to adduce any further evidence. One of the pleas taken by the appellants in the memo of special leave petition is that the High Court had erred in remanding the matter back for fresh trial and the High Court had failed to appreciate that there was sufficient material on record to show absence of readiness and willingness on the part of the plaintiff to perform its part of the contract. On the other hand, after the passing of the impugned order of remand the plaintiff-respondent has also, through his counsel, filed a memo before the trial court on 18.2.2000 submitting that on the additional issues framed pursuant to the direction of the High Court, the evidence on behalf of the plaintiff was already on record and the plaintiff would lead rebuttal evidence only if any evidence was adduced by the defendants. Thus the plaintiff is also not desirous of adducing any additional evidence on the issues.14. The subsequent events which are material and ought to be noticed by the appellate court are only two, i.e. (i) communication of the order of the competent authority (Urban Land Ceiling) holding the land of the appellants to be within ceiling limits, and (ii) order of BIFR holding the plaintiff-respondent to be a sick company. These two events are subject matter of documentary evidence and almost admitted between the parties. The High Court can be requested to take note of such subsequent events by bringing the relevant documents on record which being public documents would not require any formal proof. The High Court may take note of such subsequent events and test the validity of judgment under appeal by reference to those events also or mould the relief suitably and as may be considered necessary.
### Response:
1
### Explanation:
plea. The High Court also noticed that in the written statement there was no plea taken that the suit for specific performance was not maintainable forwith Forms 47 and 48 of Appendix A of the Code of Civil Procedure. Having stated of the High Court felt the need of framing three additional issues, viz., (i) whether the suit is maintainable; (ii) whether the plaintiff is ready and willing to perform his part of the contract, and (iii) whether the plaintiff is entitled for specific of the contract. Having formed that opinion the High Court set aside the judgment and decree of the Trial Court framed the three issues as abovesaid, allowed liberty to the parties for adducing in the trial court such evidence as was necessary on the abovesaid issues without amending the pleadings and sent the matter back to the Trial Court. The High Court also left it open to the Trial Court to take into account the subsequent events.11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A of CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (e) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise in as much as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(e) of the Specific Relief Act was complied with or nor and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or notin law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material in as much as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration ad decision.In the case before us it was not the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial court in discharging its obligation of framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific issue. It was nobodys case that any evidence, oral or documentary, was excluded or not allowed to be taken on record by the trial court. The very fact that thehave come up to this court laying challenge to the order of remand shows that the appellants are not interested in remand and do not want any additional issue to be framed or to adduce any further evidence. One of the pleas taken by the appellants in the memo of special leave petition is that the High Court had erred in remanding the matter back for fresh trial and the High Court had failed to appreciate that there was sufficient material on record to show absence of readiness and willingness on the part of the plaintiff to perform its part of the contract. On the other hand, after the passing of the impugned order of remand thehas also, through his counsel, filed a memo before the trial court on 18.2.2000 submitting that on the additional issues framed pursuant to the direction of the High Court, the evidence on behalf of the plaintiff was already on record and the plaintiff would lead rebuttal evidence only if any evidence was adduced by the defendants. Thus the plaintiff is also not desirous of adducing any additional evidence on the issues.14. The subsequent events which are material and ought to be noticed by the appellate court are only two, i.e. (i) communication of the order of the competent authority (Urban Land Ceiling) holding the land of the appellants to be within ceiling limits, and (ii) order of BIFR holding theto be a sick company. These two events are subject matter of documentary evidence and almost admitted between the parties. The High Court can be requested to take note of such subsequent events by bringing the relevant documents on record which being public documents would not require any formal proof. The High Court may take note of such subsequent events and test the validity of judgment under appeal by reference to those events also or mould the relief suitably and as may be considered necessary.
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ICI India Ltd. Vs. State Of Orissa | it is admitted that the appellant manufactures only "Bulk Premix" in this unit. In the Certificate of Registration it is mentioned that raw materials purchased would be used in the manufacture of "Bulk Premix". Though certificate also mentioned about "machineries for explosives" before the High Court it was conceded that it is a mistake and assessee does not manufacture "Bulk Explosives" in the Rourkela Unit. Thus the appellant purchases raw materials mainly from SAIL in Orissa and other raw materials in Bihar and had manufactured "Bulk Premix" in their Rourkela Unit. Undisputedly, appellant gave declaration in Form IV for concessional rate of tax i.e. 4%. Admittedly, the appellant did not sell "Bulk Premix" manufactured by it and the same is used after stock transfer for manufacture of "Bulk Explosive" in other units in Orissa and places outside the State. 9. It is submitted by the revenue that the stress is on use of the goods purchased in the manufacture/process of "goods for sale". By not selling "Bulk Premix" and instead effecting stock transfer for manufacturing of "Bulk Explosives" for sale, there is clear violation of the first limb of the 5th proviso to Section 5(1) and therefore second limb of the proviso is attracted making the assessee liable to pay the differential tax on goods. 10. The First proviso to Section 5(1) is conceptually different from Section 8(3) of the Central Act. While the Act used the expression "within the State of Orissa" the Central Act does not have any such restriction. This is inevitable because in respect of the Central Act, the sale has to be outside the State. The use of the expression "within the State of Orissa" in 5th proviso makes the position clear that the raw materials purchased must be used for manufacture of goods in the State of Orissa for sale. 11. Entry serial No. 48 of List-C, is quoted below:- "Goods of the class or classes specified in the certificates of registration of the registered dealer purchasing the goods as being intended for use by him in the manufacture or processing or packing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power subject to the production of true declaration by the purchasing registered dealer or his authorized agent in Form IV." 12. The 5th proviso to section 5(1) of the Act reads as under:- "5. Rate of tax - (1) The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, not exceeding twenty five percent, and subject to such conditions as the State Government may, from time to time, by notification specify:xx xx xxProvided further that where a registered dealer purchases goods of the class or classes specified in his Certificate of Registration as being intended for use within the State of Orissa by him in the manufacture or processing of goods for sale or in mining or in generation or distribution of electricity or any other form of power at concessional rate of tax or free of tax after furnishing a declaration in the prescribed form, but utilizes the same for any other purpose or outside the State of Orissa, he shall pay the difference in tax or the tax, as the case may be, payable had he not furnished the declaration." 13. Form IV, which is appended to the list of taxable goods, is in the following language:- "I/we - hereby declare that the goods purchased by me/us in ash Memo/Bill No.---dated the ?from? shall be used in the manufacture/processing or packing of goods for sale in mining/generation or distribution of electricity or any other form of power.Dealer/Auhorised Agent." 14. The 5th proviso to Section 5(1) indicates the purpose for which the goods are intended to be used i.e. for manufacture/processing of goods for sale. In the instant case the raw material purchased for manufacture of "Bulk Premix", has not been used for any other purpose. But the manufactured product i.e. "Bulk Premix" has not been sold but has been transferred to other branches of the appellant situated inside as well as outside the State of Orissa. 15. As noted above the Certificate of Registration indicates that the raw materials purchased would be utilized in the manufacture of "Bulk Premix". There is also a mention about "machinery for explosive". Though it was contended by the appellant that the same is the mistake of fact and the only thing which is intended to be produced at Rourkela is "Bulk Premix", it is conceded that the "Bulk Premix" manufactured had not been sold but has been sent to different places for manufacture of other goods i.e. "Bulk Explosive". The position is factually different from that under consideration in Indian Aluminums case (supra) as the appellants instead of selling the manufactured goods transferred it to other places for further manufacture of "Bulk Explosive". The transfer clearly falls within the expression "any other purpose" mentioned in the 5th proviso to Section 5(1) of the Act. As the goods manufactured have not been sold but have been transferred, there is a violation of the terms of the declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at concessional rate of tax by 4% paid by furnishing Form IV. High Courts impugned judgment, therefore, does not warrant any interference. It may be noted that the High Court made some observation about what would have been the consequence had there been mention of final product in the Certificate of Registration of the appellant. 16. Learned counsel for the respondent-State submitted that the observations of High Court are erroneous. Though learned counsel for the appellants also referred to the observation to support their stand, we make it clear, that we have not expressed any opinion about the correctness of the said view as that does not really fall for determination in the present case. 17. | 0[ds]appellants instead of selling the manufactured goods transferred it to other places for further manufacture of "Bulk Explosive". The transfer clearly falls within the expression "any other purpose" mentioned in the 5th proviso to Section 5(1) of the Act. As the goods manufactured have not been sold but have been transferred, there is a violation of the terms of the declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at concessional rate of tax by 4% paid by furnishing Form IV. High Courts impugned judgment, therefore, does not warrant any interference | 0 | 2,964 | 123 | ### 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:
it is admitted that the appellant manufactures only "Bulk Premix" in this unit. In the Certificate of Registration it is mentioned that raw materials purchased would be used in the manufacture of "Bulk Premix". Though certificate also mentioned about "machineries for explosives" before the High Court it was conceded that it is a mistake and assessee does not manufacture "Bulk Explosives" in the Rourkela Unit. Thus the appellant purchases raw materials mainly from SAIL in Orissa and other raw materials in Bihar and had manufactured "Bulk Premix" in their Rourkela Unit. Undisputedly, appellant gave declaration in Form IV for concessional rate of tax i.e. 4%. Admittedly, the appellant did not sell "Bulk Premix" manufactured by it and the same is used after stock transfer for manufacture of "Bulk Explosive" in other units in Orissa and places outside the State. 9. It is submitted by the revenue that the stress is on use of the goods purchased in the manufacture/process of "goods for sale". By not selling "Bulk Premix" and instead effecting stock transfer for manufacturing of "Bulk Explosives" for sale, there is clear violation of the first limb of the 5th proviso to Section 5(1) and therefore second limb of the proviso is attracted making the assessee liable to pay the differential tax on goods. 10. The First proviso to Section 5(1) is conceptually different from Section 8(3) of the Central Act. While the Act used the expression "within the State of Orissa" the Central Act does not have any such restriction. This is inevitable because in respect of the Central Act, the sale has to be outside the State. The use of the expression "within the State of Orissa" in 5th proviso makes the position clear that the raw materials purchased must be used for manufacture of goods in the State of Orissa for sale. 11. Entry serial No. 48 of List-C, is quoted below:- "Goods of the class or classes specified in the certificates of registration of the registered dealer purchasing the goods as being intended for use by him in the manufacture or processing or packing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power subject to the production of true declaration by the purchasing registered dealer or his authorized agent in Form IV." 12. The 5th proviso to section 5(1) of the Act reads as under:- "5. Rate of tax - (1) The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, not exceeding twenty five percent, and subject to such conditions as the State Government may, from time to time, by notification specify:xx xx xxProvided further that where a registered dealer purchases goods of the class or classes specified in his Certificate of Registration as being intended for use within the State of Orissa by him in the manufacture or processing of goods for sale or in mining or in generation or distribution of electricity or any other form of power at concessional rate of tax or free of tax after furnishing a declaration in the prescribed form, but utilizes the same for any other purpose or outside the State of Orissa, he shall pay the difference in tax or the tax, as the case may be, payable had he not furnished the declaration." 13. Form IV, which is appended to the list of taxable goods, is in the following language:- "I/we - hereby declare that the goods purchased by me/us in ash Memo/Bill No.---dated the ?from? shall be used in the manufacture/processing or packing of goods for sale in mining/generation or distribution of electricity or any other form of power.Dealer/Auhorised Agent." 14. The 5th proviso to Section 5(1) indicates the purpose for which the goods are intended to be used i.e. for manufacture/processing of goods for sale. In the instant case the raw material purchased for manufacture of "Bulk Premix", has not been used for any other purpose. But the manufactured product i.e. "Bulk Premix" has not been sold but has been transferred to other branches of the appellant situated inside as well as outside the State of Orissa. 15. As noted above the Certificate of Registration indicates that the raw materials purchased would be utilized in the manufacture of "Bulk Premix". There is also a mention about "machinery for explosive". Though it was contended by the appellant that the same is the mistake of fact and the only thing which is intended to be produced at Rourkela is "Bulk Premix", it is conceded that the "Bulk Premix" manufactured had not been sold but has been sent to different places for manufacture of other goods i.e. "Bulk Explosive". The position is factually different from that under consideration in Indian Aluminums case (supra) as the appellants instead of selling the manufactured goods transferred it to other places for further manufacture of "Bulk Explosive". The transfer clearly falls within the expression "any other purpose" mentioned in the 5th proviso to Section 5(1) of the Act. As the goods manufactured have not been sold but have been transferred, there is a violation of the terms of the declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at concessional rate of tax by 4% paid by furnishing Form IV. High Courts impugned judgment, therefore, does not warrant any interference. It may be noted that the High Court made some observation about what would have been the consequence had there been mention of final product in the Certificate of Registration of the appellant. 16. Learned counsel for the respondent-State submitted that the observations of High Court are erroneous. Though learned counsel for the appellants also referred to the observation to support their stand, we make it clear, that we have not expressed any opinion about the correctness of the said view as that does not really fall for determination in the present case. 17.
### Response:
0
### Explanation:
appellants instead of selling the manufactured goods transferred it to other places for further manufacture of "Bulk Explosive". The transfer clearly falls within the expression "any other purpose" mentioned in the 5th proviso to Section 5(1) of the Act. As the goods manufactured have not been sold but have been transferred, there is a violation of the terms of the declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at concessional rate of tax by 4% paid by furnishing Form IV. High Courts impugned judgment, therefore, does not warrant any interference
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Mahanadi Coalfields Ltd. Vs. Dhansar Engineering Company Pvt.Ltd.&Anr | (extended) period. 23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to the respondents. 24. The respondents, would then contend that, the appellants without giving any opportunity to the respondents unilaterally imposed penalty and despite the noting of the General Manager that there was no loss of production to the appellants. Similarly, a doubt was expressed by the Project Officer regarding giving extra work to the respondents at the fag end of the contract period. The respondents have relied on the decision of this Court in Maula Bux vs. Union of India (1969) 2 SCC 554 ), in which it has been held that “where a sum is named in the contract in the nature of a penalty, where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by it.” It is, however, indisputable that financial loss was suffered by the appellants on account of assigning the unfinished work to a third agency (contractor) at a higher rate. In that, the contract rate for the same work to be done by the respondents would have been at Rs. 17/- per cubic meter, which the appellants were required to get it executed at the rate of Rs. 31.50 per cubic meter through a third agency. The fact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents is vitiated; as also the decisions relied in support of that contention in the case of Gorkha Security Services vs. Government (NCT of Delhi) & Ors. (2014) 9 SCC 105 )and Kumari Shrilekha Vidyarthi & Ors vs. State of U.P. (1991) 1 SCC 212 ) 25. Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alternative remedy is no bar to entertain a Writ Petition under Article 226 of the Constitution of India, as held in the cases of Popcorn Enterainment vs. City Development Corporation (2007) 9 SCC 593 ), Harbanslal Sahnia & Anr. vs. Indian Oil Corporation Ltd. & Ors. (2003) 2 SCC 107 ), Union of India & Ors. vs. Tantia Construction Pvt. Ltd. (2011)5 SCC 697) , M.P. State Agro Industries Development Corpn. & Anr. Vs. Jahan Khan (2007) 10 SCC 88 )and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 ). For, we have already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left open. | 1[ds]23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to thefact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents ishave already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left | 1 | 8,148 | 696 | ### 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:
(extended) period. 23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to the respondents. 24. The respondents, would then contend that, the appellants without giving any opportunity to the respondents unilaterally imposed penalty and despite the noting of the General Manager that there was no loss of production to the appellants. Similarly, a doubt was expressed by the Project Officer regarding giving extra work to the respondents at the fag end of the contract period. The respondents have relied on the decision of this Court in Maula Bux vs. Union of India (1969) 2 SCC 554 ), in which it has been held that “where a sum is named in the contract in the nature of a penalty, where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by it.” It is, however, indisputable that financial loss was suffered by the appellants on account of assigning the unfinished work to a third agency (contractor) at a higher rate. In that, the contract rate for the same work to be done by the respondents would have been at Rs. 17/- per cubic meter, which the appellants were required to get it executed at the rate of Rs. 31.50 per cubic meter through a third agency. The fact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents is vitiated; as also the decisions relied in support of that contention in the case of Gorkha Security Services vs. Government (NCT of Delhi) & Ors. (2014) 9 SCC 105 )and Kumari Shrilekha Vidyarthi & Ors vs. State of U.P. (1991) 1 SCC 212 ) 25. Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alternative remedy is no bar to entertain a Writ Petition under Article 226 of the Constitution of India, as held in the cases of Popcorn Enterainment vs. City Development Corporation (2007) 9 SCC 593 ), Harbanslal Sahnia & Anr. vs. Indian Oil Corporation Ltd. & Ors. (2003) 2 SCC 107 ), Union of India & Ors. vs. Tantia Construction Pvt. Ltd. (2011)5 SCC 697) , M.P. State Agro Industries Development Corpn. & Anr. Vs. Jahan Khan (2007) 10 SCC 88 )and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 ). For, we have already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left open.
### Response:
1
### Explanation:
23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to thefact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents ishave already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left
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THE MUNICIPAL COMMITTEE, BARWALA, DISTRICT HISAR, HARYANA THROUGH ITS SECRETARY/PRESIDENT Vs. JAI NARAYAN AND COMPANY & ANR | sewers, cesspools or elsewhere or deposited in places fixed by the committee under section 152; (e) all public lamps, lamp-posts, and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the committee by the State Government or acquired by gift, purchase or otherwise for local public purposes; (g) all public streets, not being land owned by the State Government, and the payments, stones and other materials thereof, and also trees growing on, and erections, materials, implements, and things provided for, such streets; (h) Shamlat Deh. (2) Where any immovable property is transferred otherwise than by the sale by the State Government to a committee for public purposes, it shall be deemed to be a condition of such transfer, unless specially provided to the contrary, that should the property be at any resumed by the State Government the compensation payable therefor shall, notwithstanding anything to the contrary in the Land Acquisition Act, 1894, in no case exceed the amount, if any, paid to the State Government for the transfer together with the cost or the present value, whichever shall be less of any buildings erected or other works executed on the land by the committee. 62. Inventory and map of municipal property.—(1) The committee shall maintain an inventory and a map of, all immovable property of which the committee is proprietor, or which vests in it or which it holds in trust for the State Government. (2) The copies of such inventory and map shall be deposited in the office of the Deputy Commissioner and such other officer or authority as the State Government may direct and all changes, made therein shall forth with be communicated to the Deputy Commissioner or other officer or authority. 21. Clause 61(1)(h) of the 1973 Act is the subject matter of challenge in another appeal before this Court whereas clauses (a) to (g) except clause (f) deal with the public utility services. The clause (f) deals with, the land or other property transferred to the Committee by the State Government or acquired by gift, purchase or otherwise can be utilised only for local public purposes. 22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property. 23. Section 245 of the 1973 Act falling in Chapter XII (Control) empowers the Deputy Commissioner or any other officer not below the rank of Assistant Commissioner by a general or special order to carry out the functions assigned therein. The Deputy Commissioner has a power to suspend any resolution or order of Committee under Section 246. Any action taken by the Deputy Commissioner under Sections 246, 247 or 248 of the 1973 Act is to be reported to the Commissioner. 24. Section 250 of the 1973 Act confers power with the State Government to issue directions for carrying out the purposes of the Act. The said provision reads thus: 250. Power of State Government to give directions.—The State Government may issue directions to any committee for carrying out the purposes of this Act and in particular with regard to— (a) various uses to which any land within a municipal are may be put; (b) repayment of debts and discharging of obligations; (c) collection of taxes; (d) observance of rules and bye-laws; (e) adoption of development measures and measures for promotion of public safety, health, convenience and welfare; (f) sanitation and cleanliness; (g) establishment and maintenance of fire-brigade. 25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record. 26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007. 27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder. | 1[ds]9. We have heard learned counsel for the parties and find that the decree passed by the three courts below, to say the least, is a perverse reading of the provisions of law as well as the factual position.The communication dated 10.1.2007 (Ex P-34) referred to by the plaintiff is not the communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stands confirmed. In fact, it is an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Thus, the reliance of the plaintiff on the communication dated 10.1.2007 (Ex.P/34) is not helpful to the argument raised by him as it is the inter-departmental communication from the Deputy Commissioner to the Director, Urban Local Body Department to seek approval but in the absence of any approval granted, no right would accrue.11. Therefore, no concluded contract ever came into force. Reference may be made to the judgment of this Court reported as Haryana Urban Development Authority & Ors. v. Orchid Infrastructure Developers Private Limited (2017) 4 SCC 243, wherein this Court held as under:13. Firstly, we examine the question whether there being no concluded contract in the absence of acceptance of bid and issuance of allotment letter, the suit could be said to be maintainable for the declaratory relief and mandatory injunction sought by the plaintiff. The plaintiff has prayed for a declaration that rejection of the bid was illegal. Merely by that, plaintiff could not have become entitled for consequential mandatory injunction for issuance of formal letter of allotment. Court while exercising judicial review could not have accepted the bid. The bid had never been accepted by concerned authorities. It was not a case of cancellation of bid after being accepted. Thus even assuming as per plaintiffs case that the Administrator was not equipped with the power and the Chief Administrator had the power to accept or refuse the bid, there had been no decision by the Chief Administrator. Thus, merely by declaration that rejection of the bid by the Administrator was illegal, the plaintiff could not have become entitled to consequential relief of issuance of allotment letter. Thus the suit, in the form it was filed, was not maintainable for relief sought in view of the fact that there was no concluded contract in the absence of allotment letter being issued to the plaintiff, which was a sine qua non for filing the civil suit.14. It is a settled law that the highest bidder has no vested right to have the auction concluded in his favour. The Government or its authority could validly retain power to accept or reject the highest bid in the interest of public revenue. We are of the considered opinion that there was no right acquired and no vested right accrued in favour of the plaintiff merely because his bid amount was highest and had deposited 10% of the bid amount. As per Regulation 6(2) of the Regulations of 1978, allotment letter has to be issued on acceptance of the bid by the Chief Administrator and within 30 days thereof, the successful bidder has to deposit another 15% of the bid amount. In the instant case allotment letter has never been issued to the petitioner as per Regulation 6(2) in view of non-acceptance of the bid. Thus there was no concluded contract.......It has been held by the Constitution Bench in a judgment reported as Bachhittar Singh v. State of Punjab AIR 1963 SC 395 that merely writing something on the file does not amount to an order. It was held as under:10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh............... Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the order of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh (AIR 1961 SC 493 at page 512] :xxx xxx xxx11. We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant.14. Furthermore, this Court in a judgment reported as Union of India v. Avtar Singh (1984) 3 SCC 589 held that letter does not records the decision of the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act 1954, so as to be a decision by the Central Government. It was observed as under:19. .…..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 Section 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Section 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Section 33. If the letter of Shri Dube is not a decision of the Central Government under Section 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 Section 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.16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish (2011) 8 SCC 670 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under:24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493 , Bachhittar Singh v. State of Punjab AIR 1963 SC 395 , State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705) .17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law.18. The suit was not maintainable for the reason that there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction. Secondly, even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement. In Orchid, the plaintiff had sought decree of declaration and of consequential mandatory injunction. This Court held that such suit was not maintainable as no concluded contract came into existence by merely submitting the highest bid. In these circumstances, suit for mandatory injunction was not maintainable.19. It is to be noted that though the plaintiff had served a notice on 14.9.2006, but still the suit was filed in the year 2011 in respect of the auction conducted in the year 1999. The suit for mandatory injunction was filed on or after 13.6.2011, i.e., more than 12 years after the auction was conducted on 23.3.1999. Therefore, even the suit for specific performance was barred by limitation as such suit, even if maintainable, could be filed within three years of the auction being conducted in terms of Article 54 of the Schedule to the Limitation Act, 1963. The suit for injunction was filed beyond the period of limitation and was not properly constituted. The courts have not examined such aspect as was expected to examine legally.22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property.25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007.27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder. | 1 | 5,171 | 2,239 | ### 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:
sewers, cesspools or elsewhere or deposited in places fixed by the committee under section 152; (e) all public lamps, lamp-posts, and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the committee by the State Government or acquired by gift, purchase or otherwise for local public purposes; (g) all public streets, not being land owned by the State Government, and the payments, stones and other materials thereof, and also trees growing on, and erections, materials, implements, and things provided for, such streets; (h) Shamlat Deh. (2) Where any immovable property is transferred otherwise than by the sale by the State Government to a committee for public purposes, it shall be deemed to be a condition of such transfer, unless specially provided to the contrary, that should the property be at any resumed by the State Government the compensation payable therefor shall, notwithstanding anything to the contrary in the Land Acquisition Act, 1894, in no case exceed the amount, if any, paid to the State Government for the transfer together with the cost or the present value, whichever shall be less of any buildings erected or other works executed on the land by the committee. 62. Inventory and map of municipal property.—(1) The committee shall maintain an inventory and a map of, all immovable property of which the committee is proprietor, or which vests in it or which it holds in trust for the State Government. (2) The copies of such inventory and map shall be deposited in the office of the Deputy Commissioner and such other officer or authority as the State Government may direct and all changes, made therein shall forth with be communicated to the Deputy Commissioner or other officer or authority. 21. Clause 61(1)(h) of the 1973 Act is the subject matter of challenge in another appeal before this Court whereas clauses (a) to (g) except clause (f) deal with the public utility services. The clause (f) deals with, the land or other property transferred to the Committee by the State Government or acquired by gift, purchase or otherwise can be utilised only for local public purposes. 22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property. 23. Section 245 of the 1973 Act falling in Chapter XII (Control) empowers the Deputy Commissioner or any other officer not below the rank of Assistant Commissioner by a general or special order to carry out the functions assigned therein. The Deputy Commissioner has a power to suspend any resolution or order of Committee under Section 246. Any action taken by the Deputy Commissioner under Sections 246, 247 or 248 of the 1973 Act is to be reported to the Commissioner. 24. Section 250 of the 1973 Act confers power with the State Government to issue directions for carrying out the purposes of the Act. The said provision reads thus: 250. Power of State Government to give directions.—The State Government may issue directions to any committee for carrying out the purposes of this Act and in particular with regard to— (a) various uses to which any land within a municipal are may be put; (b) repayment of debts and discharging of obligations; (c) collection of taxes; (d) observance of rules and bye-laws; (e) adoption of development measures and measures for promotion of public safety, health, convenience and welfare; (f) sanitation and cleanliness; (g) establishment and maintenance of fire-brigade. 25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record. 26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007. 27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder.
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1
### Explanation:
recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under:24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493 , Bachhittar Singh v. State of Punjab AIR 1963 SC 395 , State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705) .17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law.18. The suit was not maintainable for the reason that there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction. Secondly, even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement. In Orchid, the plaintiff had sought decree of declaration and of consequential mandatory injunction. This Court held that such suit was not maintainable as no concluded contract came into existence by merely submitting the highest bid. In these circumstances, suit for mandatory injunction was not maintainable.19. It is to be noted that though the plaintiff had served a notice on 14.9.2006, but still the suit was filed in the year 2011 in respect of the auction conducted in the year 1999. The suit for mandatory injunction was filed on or after 13.6.2011, i.e., more than 12 years after the auction was conducted on 23.3.1999. Therefore, even the suit for specific performance was barred by limitation as such suit, even if maintainable, could be filed within three years of the auction being conducted in terms of Article 54 of the Schedule to the Limitation Act, 1963. The suit for injunction was filed beyond the period of limitation and was not properly constituted. The courts have not examined such aspect as was expected to examine legally.22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property.25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007.27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder.
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Prahlad Singh Vs. State Of Madhya Pradesh | charged of the offence of committing rape on the allegation that on 26th May, 1984 he committed rape on a minor girl Kumari Sarvesh, PW-5 when the girl was playing outside her house in the company of her two younger sisters. The prosecution alleged that while the prosecutrix PW-5 was playing, the appellant induced her and then took her outside the military camp and subjected her to sexual assault on account of which the girl started profusely bleeding. Her father, Siyaram, PW-9 went in search of the girl and found her standing on the road and crying, as the accused had left her near that place. The girl then narrated the incident to her father who lodged a report which was treated as FIR and police thereafter started investigation. The further prosecution case is that on suspicion the appellant who was also any army jawan was arrested and his identification parade was held on 23.7.1984 by PW-2 wherein the appellant was identified by the prosecutrix. On completion of investigation the charge-sheet was submitted and the accused stood the trial. The learned Sessions Judge relying upon the evidence of Doctor-PW-4, prosecutrix-PW-5 and her parents PWs 7 and 9 came to the conclusion that on the relevant date of occurrence the prosecutrix was raped. But so far as the complicity of the appellant with the incident is concerned, the learned Sessions Judge could not find any reliable evidence and acquitted him of the charge. On an appeal being carried, the High Court by the impugned judgment interfered with the order of acquittal and relying upon the evidence of the prosecutrix, more particularly the identification of the appellant by the prosecutrix convicted the appellant as already stated. 3. The learned counsel for the appellant contended that there is not an iota of acceptable evidence before the Court which can be said to have brought home the charge against the appellant and the High Court committed an error in altering an order of acquittal to one of conviction by mere surmises and conjectures. The learned counsel urged that so far as the so-called identification parade which was held on 23.7.1984 is concerned, no credence can be given to the same inasmuch as the same identification parade was held two months after the incident and that the accused was shown to the prosecutrix earlier to the identification in question. According to the learned counsel the Sessions Judge rightly did not give any credence to the identification. In this Court also the counsel appearing for the appellant stated that no credence can be given to the so- called identification that was held two months after the occurrence wherein the prosecutrix is alleged to have identified the accused. It may be appropriate to extract in this connection the statement of the prosecutrix in cross-examination wherein she stated : "The accused was kept in custody in the Quarter Guard, where my father had taken me and Major Raizada was also present there. Thereafter, my father had taken me again to the camp for re-identification of the accused. My father had told me to move to the place of identification and to identify the accused". 4. It may be stated that though the prosecution had sought to establish a case that the accused had been identified even prior to the test identification-parade before one Major Raizada but no evidence was laid in that regard and even Major Raizada was not examined as a witness. The identification was supposed to have been made also in the presence of one Subedar Harphool Singh but said Harphool Singh also was not examined by the prosecution. In the aforesaid circumstances, in our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984. 5. The learned counsel for the appellant further urged that the only other item of evidence to prove the complicity of the appellant with the offence is the substantive evidence of the prosecutrix in the Court inasmuch as she identified the appellant to be the person who committed the sexual assault on her on the date of occurrence. But that evidence is also wholly unacceptable in view of the statement of the prosecutrix in the cross- examination wherein she stated : "Today, I have come along with my father. The Police uncle was also with me outside. Now when the accused entered into the court, then the Policewala and my father had told me that he is the accused and that is why that I have stated that he is the accused. The Policewala uncle had tutored my statement outside today and accordingly I am deposing my same tutored statement." 6. In view of the aforesaid evidence of the prosecutrix, in our opinion the learned counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on the same. Mr. Shukla, the learned senior counsel appearing for the respondent, however, submitted that the accused being an army jawan and a colleague of the father of the prosecutrix and prosecutrix having been sexually assaulted by the accused, there is no reason for the prosecutrix to unnecessarily involve an innocent man and since the fact of rape on the prosecutrix has been established beyond reasonable doubt, the High Court rightly convicted the appellant. We are, however, unable to accept this contention since until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused- appellant who committed rape he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. In our considered opinion, therefore, the High Court interfered with an order of acquittal on mere surmises and conjectures without having an iota of acceptable evidence bringing complicity of the accused and as such the said conviction and sentence cannot be sustained in law. | 1[ds]4. It may be stated that though the prosecution had sought to establish a case that the accused had been identified even prior to the test identification-parade before one Major Raizada but no evidence was laid in that regard and even Major Raizada was not examined as a witness. The identification was supposed to have been made also in the presence of one Subedar Harphool Singh but said Harphool Singh also was not examined by the prosecution. In the aforesaid circumstances, in our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984.In view of the aforesaid evidence of the prosecutrix, in our opinion the learned counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on theare, however, unable to accept this contention since until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused- appellant who committed rape he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. In our considered opinion, therefore, the High Court interfered with an order of acquittal on mere surmises and conjectures without having an iota of acceptable evidence bringing complicity of the accused and as such the said conviction and sentence cannot be sustained in law. | 1 | 1,157 | 264 | ### Instruction:
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charged of the offence of committing rape on the allegation that on 26th May, 1984 he committed rape on a minor girl Kumari Sarvesh, PW-5 when the girl was playing outside her house in the company of her two younger sisters. The prosecution alleged that while the prosecutrix PW-5 was playing, the appellant induced her and then took her outside the military camp and subjected her to sexual assault on account of which the girl started profusely bleeding. Her father, Siyaram, PW-9 went in search of the girl and found her standing on the road and crying, as the accused had left her near that place. The girl then narrated the incident to her father who lodged a report which was treated as FIR and police thereafter started investigation. The further prosecution case is that on suspicion the appellant who was also any army jawan was arrested and his identification parade was held on 23.7.1984 by PW-2 wherein the appellant was identified by the prosecutrix. On completion of investigation the charge-sheet was submitted and the accused stood the trial. The learned Sessions Judge relying upon the evidence of Doctor-PW-4, prosecutrix-PW-5 and her parents PWs 7 and 9 came to the conclusion that on the relevant date of occurrence the prosecutrix was raped. But so far as the complicity of the appellant with the incident is concerned, the learned Sessions Judge could not find any reliable evidence and acquitted him of the charge. On an appeal being carried, the High Court by the impugned judgment interfered with the order of acquittal and relying upon the evidence of the prosecutrix, more particularly the identification of the appellant by the prosecutrix convicted the appellant as already stated. 3. The learned counsel for the appellant contended that there is not an iota of acceptable evidence before the Court which can be said to have brought home the charge against the appellant and the High Court committed an error in altering an order of acquittal to one of conviction by mere surmises and conjectures. The learned counsel urged that so far as the so-called identification parade which was held on 23.7.1984 is concerned, no credence can be given to the same inasmuch as the same identification parade was held two months after the incident and that the accused was shown to the prosecutrix earlier to the identification in question. According to the learned counsel the Sessions Judge rightly did not give any credence to the identification. In this Court also the counsel appearing for the appellant stated that no credence can be given to the so- called identification that was held two months after the occurrence wherein the prosecutrix is alleged to have identified the accused. It may be appropriate to extract in this connection the statement of the prosecutrix in cross-examination wherein she stated : "The accused was kept in custody in the Quarter Guard, where my father had taken me and Major Raizada was also present there. Thereafter, my father had taken me again to the camp for re-identification of the accused. My father had told me to move to the place of identification and to identify the accused". 4. It may be stated that though the prosecution had sought to establish a case that the accused had been identified even prior to the test identification-parade before one Major Raizada but no evidence was laid in that regard and even Major Raizada was not examined as a witness. The identification was supposed to have been made also in the presence of one Subedar Harphool Singh but said Harphool Singh also was not examined by the prosecution. In the aforesaid circumstances, in our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984. 5. The learned counsel for the appellant further urged that the only other item of evidence to prove the complicity of the appellant with the offence is the substantive evidence of the prosecutrix in the Court inasmuch as she identified the appellant to be the person who committed the sexual assault on her on the date of occurrence. But that evidence is also wholly unacceptable in view of the statement of the prosecutrix in the cross- examination wherein she stated : "Today, I have come along with my father. The Police uncle was also with me outside. Now when the accused entered into the court, then the Policewala and my father had told me that he is the accused and that is why that I have stated that he is the accused. The Policewala uncle had tutored my statement outside today and accordingly I am deposing my same tutored statement." 6. In view of the aforesaid evidence of the prosecutrix, in our opinion the learned counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on the same. Mr. Shukla, the learned senior counsel appearing for the respondent, however, submitted that the accused being an army jawan and a colleague of the father of the prosecutrix and prosecutrix having been sexually assaulted by the accused, there is no reason for the prosecutrix to unnecessarily involve an innocent man and since the fact of rape on the prosecutrix has been established beyond reasonable doubt, the High Court rightly convicted the appellant. We are, however, unable to accept this contention since until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused- appellant who committed rape he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. In our considered opinion, therefore, the High Court interfered with an order of acquittal on mere surmises and conjectures without having an iota of acceptable evidence bringing complicity of the accused and as such the said conviction and sentence cannot be sustained in law.
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4. It may be stated that though the prosecution had sought to establish a case that the accused had been identified even prior to the test identification-parade before one Major Raizada but no evidence was laid in that regard and even Major Raizada was not examined as a witness. The identification was supposed to have been made also in the presence of one Subedar Harphool Singh but said Harphool Singh also was not examined by the prosecution. In the aforesaid circumstances, in our opinion no credence can be given to the identification said to have been made before the test identification-parade on 23.7.1984.In view of the aforesaid evidence of the prosecutrix, in our opinion the learned counsel for the appellant is wholly justified in making his submission that the substantive evidence of the prosecutrix in court identifying the accused is absolutely of no relevance and is wholly unacceptable and no conviction can be based on theare, however, unable to accept this contention since until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused- appellant who committed rape he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. In our considered opinion, therefore, the High Court interfered with an order of acquittal on mere surmises and conjectures without having an iota of acceptable evidence bringing complicity of the accused and as such the said conviction and sentence cannot be sustained in law.
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SECUNDERABAD CANTONMENT BOARD Vs. M/S B. RAMACHANDRAIAH & SONS | stage. At the referral stage, the Court can interfere only when it is manifest that the claims are ex facie time barred and dead, or there is no subsisting dispute. Paragraph 148 of the judgment reads as follows : 148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed no-claim certificate or defence on the plea of novation and accord and satisfaction. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen. In paragraph 154.4, it has been concluded that: 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. (emphasis supplied) In paragraph 244.4 it was concluded that: 244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. when in doubt, do refer. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra). It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. (emphasis in original) 20. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 07.11.2006. This demand was reiterated by a letter dated 13.01.2007, which letter itself informed the Appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12.02.2007. The Appellants laconic letter dated 23.01.2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12.02.2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the Respondent and time began running from that day. Obviously, once time has started running, any final rejection by the Appellant by its letter dated 10.11.2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 06.11.2013, they were within the limitation period of three years starting from 10.11.2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court. 21. Even otherwise, the claim made by the Respondent was also ex facie time barred. It is undisputed that final payments were received latest by the end of March 2003 by the Respondent. That apart, even assuming that a demand could have been made on account of price variation, such demand was made on 08.09.2003. Repeated letters were written thereafter by the Respondent, culminating in a legal notice dated 30.01.2010. Vide the reply notice dated 16.02.2010, it was made clear that such demands had been rejected. Even taking 16.02.2010 as the starting point for limitation on merits, a period of three years having elapsed by February 2013, the claim made on merits is also hopelessly time barred. | 1[ds]15. Having heard learned counsel appearing for both parties, it is first necessary to refer to the recent judgment of this Court in Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd., (2020) 14 SCC 643, which extracts passages from all the earlier relevant judgments, and then lays down as to when time begins to run for the purpose of filing an application under Section 11 of the Arbitration Act. This Court, after referring to the relevant statutory provisions, held:15. In Damodar Das [State of Orissa v. Damodar Das, (1996) 2 SCC 216 ] , this Court observed, relying upon Russell on Arbitration by Anthony Walton (19th Edn.) at pp. 4-5 and an earlier decision of a two-Judge Bench in Panchu Gopal Bose v. Port of Calcutta [Panchu Gopal Bose v. Port of Calcutta, (1993) 4 SCC 338 ] , that the period of limitation for an application for appointment of arbitrator under Sections 8 and 20 of the 1940 Act commences on the date on which the cause of arbitration accrued i.e. from the date when the claimant first acquired either a right of action or a right to require that an arbitration take place upon the dispute concerned.xxx xxx xxx21. Applying the aforementioned principles to the present case, we find ourselves in agreement with the finding of the High Court that the appellants cause of action in respect of Arbitration Applications Nos. 25/2003 and 27/2003, relating to the work orders dated 7-10-1979 and 4-4-1980 arose on 8-2-1983, which is when the final bill handed over to the respondent became due. Mere correspondence of the appellant by way of writing letters/reminders to the respondent subsequent to this date would not extend the time of limitation. Hence the maximum period during which this Court could have allowed the appellants application for appointment of an arbitrator is 3 years from the date on which cause of action arose i.e. 8-2-1986. Similarly, with respect to Arbitration Application No. 28/2003 relating to the work order dated 3-5-1985, the respondent has stated that final bill was handed over and became due on 10-8- 1989. This has not been disputed by the appellant. Hence the limitation period ended on 10-8-1992. Since the appellant served notice for appointment of arbitrator in 2002, and requested the appointment of an arbitrator before a court only by the end of 2003, his claim is clearly barred by limitation.xxx xxx xxx23. Turning to the other decisions, it is true that in Inder Singh Rekhi [Inder Singh Rekhi v. DDA, (1988) 2 SCC 338 ], this Court observed that the existence of a dispute is essential for appointment of an arbitrator. A dispute arises when a claim is asserted by one party and denied by the other. The term dispute entails a positive element and mere inaction to pay does not lead to the inference that dispute exists. In that case, since the respondent failed to finalise the bills due to the applicant, this Court held that cause of action would be treated as arising not from the date on which the payment became due, but on the date when the applicant first wrote to the respondent requesting finalisation of the bills. However, the Court also expressly observed that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders.24. In the present case, the appellant has not disputed the High Courts finding that the appellant itself had handed over the final bill to the respondent on 8-2-1983. Hence, the holding in Inder Singh Rekhi [Inder Singh Rekhi v. DDA, (1988) 2 SCC 338 ] will not apply, as in that case, the applicants claim was delayed on account of the respondents failure to finalise the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (see Union of India v. Momin Construction Co. [Union of India v. Momin Construction Co., (1997) 9 SCC 97 ] ).xxx xxx xxx29. Moreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that it waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile.16. The recent judgment of this Court in Bharat Sanchar Nigam Ltd. & Anr. v. M/s Nortel Networks India Pvt. Ltd., delivered on 10.03.2021 in Civil Appeal Nos. 843-844 of 2021 has also considered the entire law on the subject. The first paragraph of the said judgment reads as follows:1. The present Appeals raise two important issues for our consideration : (i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 (the 1996 Act); and (ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred?17. Insofar as the first issue is concerned, after examining Article 137 of the Limitation Act, this Court held:11. It is now fairly well-settled that the limitation for filing an application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s) / dispute(s) to be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment.12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. This position was recognized even under Section 20 of the Arbitration Act 1940. Reference may be made to the judgment of this Court in C. Budhraja v. Chairman, Orissa Mining Corporation Ltd. [(2008) 2 SCC 444] wherein it was held that Section 37(3) of the 1940 Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party, a notice requiring the appointment of an arbitrator. Paragraph 26 of this judgment reads as follows :26. Section 37(3) of the Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto, a notice requiring the appointment of an arbitrator. Such a notice having been served on 4-6-1980, it has to be seen whether the claims were in time as on that date. If the claims were barred on 4-6-1980, it follows that the claims had to be rejected by the arbitrator on the ground that the claims were barred by limitation. The said period has nothing to do with the period of limitation for filing a petition under Section 8(2) of the Act. Insofar as a petition under Section 8(2) is concerned, the cause of action would arise when the other party fails to comply with the notice invoking arbitration. Therefore, the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim. The decisions of this Court in Major (Retd.) Inder Singh Rekhi v. DDA [(1988) 2 SCC 338] , Panchu Gopal Bose v. Board of Trustees for Port of Calcutta [(1993) 4 SCC 338] and Utkal Commercial Corpn. v. Central Coal Fields Ltd. [(1999) 2 SCC 571] also make this position clear.18. Insofar as the second issue is concerned, this Court went into the position prior to the Arbitration and Conciliation (Amendment) Act, 2015 [2015 Amendment] together with the change made by the introduction of Section 11(6A) by the 2015 Amendment, stating:24. Sub-section (6A) came up for consideration in the case of Duro Felguera SA v. Gangavaram Port Ltd. [(2017) 9 SCC 729] , wherein this Court held that the legislative policy was to minimize judicial intervention at the appointment stage. In an application under Section 11, the Court should only look into the existence of the arbitration agreement, before making the reference. Post the 2015 amendments, all that the courts are required to examine is whether an arbitration agreement is in existence —nothing more, nothing less.48. Section 11(6-A) added by the 2015 Amendment, reads as follows:11. (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under subsection (4) or sub-section (5) or subsection (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement.From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect—the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple—it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.59. The scope of the power under Section 11(6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. [SBP and Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] . This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists—nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Courts intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected.25. In Mayavati Trading Company Private Ltd. v. Pradyut Dev Burman [(2019) 8 SCC 714] , a three-judge bench held that the scope of power of the Court under Section 11 (6A) had to be construed in the narrow sense. In paragraph 10, it was opined as under :10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment [United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362 : (2019) 2 SCC (Civ) 785] , as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment in Duro Felguera, SA [Duro Felguera, SA v. Gangavaram Port Ltd., (2017) 9 SCC 729 26. In Uttarakhand Purv Sainik Kalyan Nigam v. Northern Coal Field Limited [(2020) 2 SCC 455] this Court took note of the recommendations of the Law Commission in its 246th Report, the relevant extract of which reads as :7.6. The Law Commission in the 246th Report [Amendments to the Arbitration and Conciliation Act, 1996, Report No. 246, Law Commission of India (August 2014), p. 20.] recommended that:33. … the Commission has recommended amendments to Sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the court/judicial authority finds that the arbitration agreement does not exist or is null and void. Insofar as the nature of intervention is concerned, it is recommended that in the event the court/judicial authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal.In view of the legislative mandate contained in the amended Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz-komptenz principle. The doctrine of kompetenz-komptenz implies that the arbitral tribunal is empowered, and has the competence to rule on its own jurisdiction, including determination of all jurisdictional issues. This was intended to minimise judicial intervention at the pre-reference stage, so that the arbitral process is not thwarted at the threshold when a preliminary objection is raised by the parties.(emphasis in original)19. This Court went on to hold that limitation is not a jurisdictional issue but is an admissibility issue. It then referred to a recent judgment of this Court in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 , and stated as follows:36. In a recent judgment delivered by a three-judge bench in Vidya Drolia v. Durga Trading Corporation [(2021) 2 SCC 1] , on the scope of power under Sections 8 and 11, it has been held that the Court must undertake a primary first review to weed out manifestly ex facie non-existent and invalid arbitration agreements, or non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood, where dismissal is bare faced and pellucid, and when on the facts and law, the litigation must stop at the first stage. Only when the Court is certain that no valid arbitration agreement exists, or that the subject matter is not arbitrable, that reference may be refused.In paragraph 144, the Court observed that the judgment in Mayavati Trading had rightly held that the judgment in Patel Engineering had been legislatively overruled.Paragraph 144 reads as :144. As observed earlier, Patel Engg. Ltd. explains and holds that Sections 8 and 11 are complementary in nature as both relate to reference to arbitration. Section 8 applies when judicial proceeding is pending and an application is filed for stay of judicial proceeding and for reference to arbitration. Amendments to Section 8 vide Act 3 of 2016 have not been omitted. Section 11 covers the situation where the parties approach a court for appointment of an arbitrator. Mayavati Trading (P) Ltd., in our humble opinion, rightly holds that Patel Engg. Ltd. has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Mayavati Trading (P) Ltd. has elaborated upon the object and purposes and history of the amendment to Section 11, with reference to sub-section (6-A) to elucidate that the section, as originally enacted, was facsimile with Article 11 of the Uncitral Model of law of arbitration on which the Arbitration Act was drafted and enacted.While exercising jurisdiction under Section 11 as the judicial forum, the court may exercise the prima facie test to screen and knockdown ex facie meritless, frivolous, and dishonest litigation. Limited jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere only when it is manifest that the claims are ex facie time barred and dead, or there is no subsisting dispute.Paragraph 148 of the judgment reads as follows :148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed no-claim certificate or defence on the plea of novation and accord and satisfaction. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.In paragraph 154.4, it has been concluded that:154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.In paragraph 244.4 it was concluded that:244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e.when in doubt, do refer. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra).It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.(emphasis in original)20. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 07.11.2006. This demand was reiterated by a letter dated 13.01.2007, which letter itself informed the Appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12.02.2007. The Appellants laconic letter dated 23.01.2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12.02.2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the Respondent and time began running from that day. Obviously, once time has started running, any final rejection by the Appellant by its letter dated 10.11.2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 06.11.2013, they were within the limitation period of three years starting from 10.11.2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court.21. Even otherwise, the claim made by the Respondent was also ex facie time barred. It is undisputed that final payments were received latest by the end of March 2003 by the Respondent. That apart, even assuming that a demand could have been made on account of price variation, such demand was made on 08.09.2003. Repeated letters were written thereafter by the Respondent, culminating in a legal notice dated 30.01.2010. Vide the reply notice dated 16.02.2010, it was made clear that such demands had been rejected. Even taking 16.02.2010 as the starting point for limitation on merits, a period of three years having elapsed by February 2013, the claim made on merits is also hopelessly time barred. | 1 | 6,809 | 4,142 | ### Instruction:
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stage. At the referral stage, the Court can interfere only when it is manifest that the claims are ex facie time barred and dead, or there is no subsisting dispute. Paragraph 148 of the judgment reads as follows : 148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed no-claim certificate or defence on the plea of novation and accord and satisfaction. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen. In paragraph 154.4, it has been concluded that: 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. (emphasis supplied) In paragraph 244.4 it was concluded that: 244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. when in doubt, do refer. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra). It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. (emphasis in original) 20. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 07.11.2006. This demand was reiterated by a letter dated 13.01.2007, which letter itself informed the Appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12.02.2007. The Appellants laconic letter dated 23.01.2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12.02.2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the Respondent and time began running from that day. Obviously, once time has started running, any final rejection by the Appellant by its letter dated 10.11.2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 06.11.2013, they were within the limitation period of three years starting from 10.11.2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court. 21. Even otherwise, the claim made by the Respondent was also ex facie time barred. It is undisputed that final payments were received latest by the end of March 2003 by the Respondent. That apart, even assuming that a demand could have been made on account of price variation, such demand was made on 08.09.2003. Repeated letters were written thereafter by the Respondent, culminating in a legal notice dated 30.01.2010. Vide the reply notice dated 16.02.2010, it was made clear that such demands had been rejected. Even taking 16.02.2010 as the starting point for limitation on merits, a period of three years having elapsed by February 2013, the claim made on merits is also hopelessly time barred.
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jurisdiction of the Courts would ensure expeditious and efficient disposal at the referral stage. At the referral stage, the Court can interfere only when it is manifest that the claims are ex facie time barred and dead, or there is no subsisting dispute.Paragraph 148 of the judgment reads as follows :148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed no-claim certificate or defence on the plea of novation and accord and satisfaction. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.In paragraph 154.4, it has been concluded that:154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.In paragraph 244.4 it was concluded that:244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e.when in doubt, do refer. 37. The upshot of the judgment in Vidya Drolia is affirmation of the position of law expounded in Duro Felguera and Mayavati Trading, which continue to hold the field. It must be understood clearly that Vidya Drolia has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering (supra).It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.(emphasis in original)20. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 07.11.2006. This demand was reiterated by a letter dated 13.01.2007, which letter itself informed the Appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12.02.2007. The Appellants laconic letter dated 23.01.2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12.02.2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the Respondent and time began running from that day. Obviously, once time has started running, any final rejection by the Appellant by its letter dated 10.11.2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 06.11.2013, they were within the limitation period of three years starting from 10.11.2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court.21. Even otherwise, the claim made by the Respondent was also ex facie time barred. It is undisputed that final payments were received latest by the end of March 2003 by the Respondent. That apart, even assuming that a demand could have been made on account of price variation, such demand was made on 08.09.2003. Repeated letters were written thereafter by the Respondent, culminating in a legal notice dated 30.01.2010. Vide the reply notice dated 16.02.2010, it was made clear that such demands had been rejected. Even taking 16.02.2010 as the starting point for limitation on merits, a period of three years having elapsed by February 2013, the claim made on merits is also hopelessly time barred.
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State of Karnataka & Another Vs. Selvi J. Jayalalitha & Others | contemplated in Section 13(1)(e) of 1988 Act, it is inessential as well to resort to any arithmetic to compute the percentage thereof. In any view of this matter, the decision of this Court in Krishnanand Agnihotri (supra) has no application in the facts of this case and therefore, the respondents cannot avail any benefit therefrom. 539. Both the Courts have construed all the assets, income and expenditure of all the accused collectively. We see no convincing reason to adopt a different course which even otherwise, having regard to the charge, is not warranted. 540. Noticeably, the respondents accused accepted all the findings of the High Court. We have analyzed the evidence adduced by the parties and we come to the conclusion that A1 to A4 have entered into a conspiracy and in furtherance of the same, A1 who was a public servant at the relevant time had come into possession of assets disproportionate to the known sources of her income during the check period and had got the same dispersed in the names of A2 to A4 and the firms & companies involved to hold these on her behalf with a masked front. Furthermore, the the charge of abetment laid against A2 to A4 in the commission of the offence by A1 also stands proved. 541. We have noticed that: In State Through Central Bureau of Investigation, New Delhi Vs. Jitender Kumar Singh, reported in (2014) 11 SCC 724 , this Court held that once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the P.C. Act to proceed against non-PC offences alongwith PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him. Therefore, we hold that as the sole public servant has died being A1 in this matter, in our opinion, though the appeals against her have abated, even then A2 to A4 are liable to be convicted and sentenced in the manner as has been held by the Trial Judge. The Trial Court held that even private individuals could be prosecuted for the offence under Section 109 of I.P.C. and we find that the Trial Court was right in coming to the conclusion relying on the decision of Nallammal (supra), wherein it was observed that acquisition and possession by a public servant was capable of being abetted, and observed that Under Section 3 of the 1988 Act, the Special Judge had the power to try offences punishing even abetment or conspiracy of the offences mentioned in the PC Act and in our opinion, the Trial Court correctly held in this matter that private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the 1988 Act committed by the public servant. Furthermore, the reasoning given by the Trial Court in respect of criminal conspiracy and abetment, after scrutinizing the evidence of this case, is correct in the face of the overwhelming evidence indicating the circumstances of active abetment and conspiracy by A2 to A4 in the commission of the above offences under Section 13(1)(e) of the 1988 Act. This would be evident from the following circumstances:- (i) A1 had executed a General Power of Attorney in favour of A2 in respect of Jaya Publications marked as Ex.P-995. The circumstance of executing the power of attorney in favour of A2 indicates that with a view to keep herself secured from legal complications, A1 executed the said power of attorney knowing fully well that under the said powers, A2 would be dealing with her funds credited to her account in Jaya Publications. (ii) Constitution of various firms during the check period is another circumstance establishing the conspiracy between the parties. It has come in evidence that 10 firms were constituted on a single day. In addition, A2 and A3 started independent concerns and apart from buying properties, no other business activity was undertaken by them. The circumstances proved in evidence undoubtedly establish that these firms are nothing but extentions of Namadhu MGR and Jaya Publications and they owed their existence to the benevolence of A1 and A2 (iii) The aforesaid firms and companies were operating from the residence of A1 and it cannot be accepted that she was unaware of the same even though she feigned ignorance about the activities carried on by A2 to A4. They were residing with A1 without any blood relation between them. (iv) Although A2 to A4 claims to have independent sources of income but the fact of constitution of firms and acquisition of large tracts of land out of the funds provided by A1 indicate that, all the accused congregated in the house of A1 neither for social living nor A1 allowed them free accommodation out of humanitarian concern, rather the facts and circumstances proved in evidence undoubtedly point out that A2 to A4 were accommodated in the house of A1 pursuant to the criminal conspiracy hatched by them to hold the assets of A1. (v) Ex.D.61 reveals that before the Income Tax Authorities, the representative of A1 himself had put forth an argument that Rs.1 crore was advanced by A1 to Sasi Enterprises towards share capital and further it was submitted that on the security of the said amount, loan was borrowed by A1, and thus she cannot claim noninvolvement with the firms. (vi) The flow of money from one account to the other proves that there existed active conspiracy to launder the illgotten wealth of A1 for purchasing properties in the names of the firms. (vii) The conspiracy among the accused persons is also proved by the evidence of Sub-Registrar, North Beach, Sub-Registrar office-PW.159 and the evidence of PW.71 Radha Krishnan, Horticultural officer. In our opinion, the Trial Court correctly came to the conclusion on such reasoning and we hereby uphold the same. | 1[ds]140. A bare perusal of this extract would reveal that the criminal misconduct of the public servant, as envisaged therein, would ensue if he/she or any person on his/her behalf was in possession or had, at any point of time during the period of his/her office, been in possession of pecuniary resources or property, disproportionate to his/her known sources of income, which the public servant cannot satisfactorily account. Significantly, for such misconduct, the possession of the disproportionate pecuniary resources or property, which the public servant is unable to satisfactorily account, can be held either by him/her or any person on his/her behalf is essential. This offence thus, enfolds in its sweep a definitive involvement and role of persons other than the public servant, either as a abetter or ar in the actualisation of the crime. Consequently, thus such abettors ors or partners in this item of offence, if proved, cannot escape the legal consequences for their participatory role. The other segments of Section 5, not being of immediate relevance, are not being referred to153. A plain perusal of the scheme of the Act presents several noticeable special features thereof in accord with the legislative intendment to achieve the objectives set therefor. Apart from the overwhelming backdrop demanding the necessity to consolidate and reinforce the anti corruption law, the main mission being to achieve a catharsis in public office, the statute besides expanding the notion of public servant to effect maximum extension of its sweep as envisaged, has ordained the constitution of a court of Special Judge to try the offences thereunder and also the charge of any conspiracy or attempt or abetment in the commission thereof. Thus, an exclusive autonomous adjudicative regime has been put in place. The provisions of the Code have been made applicable subject to the modifications contemplated and the special Judge in particular, while trying an offence punishable under the Act has been authorised to exercise all powers and functions invocable by a District Judge under the Ordinance. Sections 7 to 12 of the Act correspond to Section 161 to 165A of the Indian Penal Code, thereby integrating the offences in the legislation to be tried by a special forum as envisaged. Resultantly, Sections 161 to 165A have been effaced from the Indian Penal Code for obvious reasons. Explanation to Section 13(i)(e) makes it limpid that the known sources of income of the public servant, to satisfactorily account the pecuniary resources or the property otherwise alleged to be disproportionate thereto, has to be from a lawful source and further that the receipt thereof had been intimated in accordance with the provisions of any law, rule or orders for the time being applicable to him/her, as the case may be. This prescription indubitably emphasizes the lawfulness or legitimacy of the income to enable the public servant to satisfactorily account for the pecuniary resources or property otherwise imputed to be disproportionate thereto. Not only the Act entertains presumption against the public servant, in the eventualities as comprehended in Section 20 of the Act, it is clarified in Section 28 that nothing in the statute would exempt any public servant from any proceeding which might apart from the Act, be instituted against him or her. Section 29, amongst others to reiterate, has substituted in paragraph 4A of the Ordinance, an offence punishable under the 1988 Act, in lieu of the offence under Section 5 of the 1947 Act. The legislation thus is a complete code by itself, vibrant with the purpose therefor and animated with the spirit to effectuate the statutory goal. All these predicate a purposive explication of the provisions thereof to further the salutary legislative vision161. The overwhelming judicial opinion thus is that a conspiracy can be proved by circumstantial evidence as mostly having regard to the nature of the offending act, no direct evidence can be expected175. The decision is to convey that though the I.T. returns and the orders passed in the I.T. Proceedings in the instant case recorded the income of the accused concerned as disclosed in their returns, in view of the charge levelled against them, such returns and the orders in the I.T. Proceedings would not by themselves establish that such income had been from lawful source as contemplated in the explanation to Section 13(1(e) and that independent evidence would be required to account for the same176. Though considerable exchanges had been made in course of the arguments, centring around Section 43 of the Indian Evidence Act, 1872, we are of the comprehension that those need not be expatiated in details. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendered therein are relevant and admissible in evidence as well, nothing as such, turns thereon definitively as those do not furnish any guarantee or authentication of the lawfulness of the source(s) of income, the pith of the charge levelled against the respondents. It is the plea of the defence that the income tax returns and orders, while proved by the accused persons had not been objected to by the prosecution and further it (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if such returns and orders are admissible, the probative value would depend on the nature of the information furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after thet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act183. The import of this decision is that in the tax regime, the legality or illegality of the transactions generating profit or loss is inconsequential qua the issue whether the income is from a lawful source or not. The scrutiny in an assessment proceeding is directed only to quantify the taxable income and the orders passed therein do not certify or authenticate that the source(s) thereof to be lawful and are thus of no significances a charge under Section 13(1)(e) of the Act234. In the present case, there is also a charge of conspiracy and abetment and, therefore, the factors as above would have to be tested on the anvil of the overall circumstances to ascertain as to whether a reasonable inference therefrom can be drawn of a benami transaction as alleged. This is more so as by the very nature of the offence of conspiracy, the activities in connection therewith are expectedly hatched in secrecy239. The narration of the judgment clearly indicates that this Court had assessed the evidence on record by itself on the items of dispute pertaining to income, expenditure and assets and had recorded its own independent findings. In most of the items, where this Court had rejected the contention of the prosecution, it appears that it had not adduced any evidence whatsoever. Further the judgment does not advance any proposition that in order to adjudge the disproportionateness of the assets in comparison of the income of a public servant, the margin of 10% is a permissible index of uniform application and acknowledged as a determinant to decide as to whether a public servant charged under Section 13(1)(e) of the 1988 Act can be held guilty of a criminal misconduct contemplated by the statute judged on such benchmarkFrom the evidence led and the arguments advanced, it appears that the income, expenditure and assets, all have been cumulatively taken account of. Though it had been argued on behalf of A1 that she had no connection whatsoever with A2, A3 and A4 and, therefore the figures relating to income, expenditure and assets would have to be separately considered, it would transpire that while adverting to the charts submitted in the course of arguments, such segregation has not been insisted upon and is even uncalled for, having regard to the charge of conspiracy and abetment, for the purpose of the appraisal to followIn view of the fact that the respondents accept the income of Rs.9,34,26,053.56 as cited by DVAC and there is no dispute with regard thereto, it is not necessary to examine the evidence of the prosecution in support of its figuresIn absence of any independent evidence in support of this claim, having regard to the state of law that income tax returns/orders are not automatically binding on a criminal court, in our view, the effortless acceptance thereof by the High Court is in disregard to this settled legal proposition. Therebythe High Court hasaccorded unassailable primacy to such income tax returns/orders and have made those final and binding on the criminal court without any appreciation of the probative potential thereof259. This head corresponds to item No. 1 of Annexure IV (Expenditure). This indicates that this loan account was closed on 25.6.1994. An amount of Rs.50,93,921/on this loan which is evident from Exb.. This has been stated by PW 182. PW6 also confirms the repayment of the loan. Thus, this head of income did not existat the end ofthe check period i.e. 30.4.1996 and cannot be accounted forThe Trial Court did take note of this aspect in its judgment while dealing with these items of loan on the basis of the evidence adduced, more particularly while dealing with the heads of expenditureIn that view of the matter, the High Court was in error in including this item of loan in the income of the respondents260. This corresponds to item No. 8 of the Heads of Income vide Exb.9 as cited by the DVAC. The oral evidence to this effect has been adduced by PW 182 who has proved Exb.. The Trial Court dealt with the evidence both oral and documentary in this regard and by referring to the letter Exb., addressed to the bank by the applicant for the loan thereof, had concluded that the liability to liquidate the loan had been taken over by A2 to A4. The evidence on record, thus, demonstrates that the Trial Court had taken note of this item of loan and, therefore the High Court ought not to have added this figure by way of duplicationIndian Bank – A1 – Rs.90,00,000/261. As would be apparent from the evidence of PW 182 who proved Exb., this loan was taken after the check period i.e. in August 1996 and thus, the amount thereof could not have been taken into account by the High Court. This figure, therefore as a corollary has to be excludedIndian Bank – Jay Real Estate – Rs.25,00,000/262. This corresponds to item No. 4 of the list of income cited by the DVAC and relatable to Exb.. PW 182 through Exb.3 has proved this loan. Exb.1 written by A3 on behalf of Jay Real Estate is one seeking loan of Rs.29 lakhs providing the necessary particulars in the annexure appended thereto. Exb.The Trial Court has duly dealt with the evidence to this effect while quantifying the income as well as in noting the expenditureby way of interestThe plea of the prosecution that in the above premise, the High Court was wrong in adding a sum of Rs.25 lakhs towards the income of the respondents under this head, has to be accepted263. This corresponds to item No. 3 of the heads of income cited by the DVAC vide Exb.. This loan has been proved by PW 182 through Exb. P1171 to 1173.The Trial Court has referred to this evidence while quantifying the income and the expenditureby way of intereston the loan amount as had been listed in Annexure IV (Expenditure) cited by the DVAC264. The documents pertaining to this loan transaction authenticate that though an amount of Rs.12,46,000/had been sanctioned by the bank, it had released only a sum of Rs.7 lakhs and the principal amount and the interest had not been repaid by the firm. Thus, per se the High Court was not justified in adding a sum of Rs.12,46,000/to the tally of income of the respondents under this head265. This corresponds to item No. 2 of the heads of income cited by the DVAC and has been proved by PW 182 through Ex. The records attest that though the full amount of Rs.50,00,000/was sanctioned, a sum of Rs.28 lakhs was only disbursed and the principal amount with interest had not been repaidThe Trial Court has considered the evidence, oral and documentary, to this effect. The addition of a further amount of Rs.50 lakhs by the High Court to the corpus of income of the respondents, therefore, is clearly erroneous266. This corresponds to item No. 1 of the items of income cited by the DVAC and in fact had been availed by Sasi Enterprise, as has been deposed by PW 182 through Ex.. The amount due and outstanding to the bank, at the relevant point of time, was Rs.13,55,023/The Trial Court noted that the application for loan had been made by Ms. Sasikala as the Managing Partner of the firm and had examined the relevant evidence including the statement of account pertaining to the loan. This head of income thus had been taken noteby the Trial Courtand, therefore the High Court was not justified to add a further sum of Rs.25 lakhs thereunderIndian Bank – Mr. Sudhakaran267. This corresponds to item No. 7 of the heads of income cited by the DVAC and has been proved by PW 182 through Ex. The Trial Court has examined the evidence relating to this loan applied for by Mr. V.N. Sudhakaran on behalf of Lex Property Development (P) Limited for a loan of Rs.. The oral and other documentary evidence with regard to the sanction of loan and the statement of account has been analysed as well. The Trial Court, thus, had taken note of this loan while computing the income of the respondents. The principal amount, due under this account at the relevant point of time, was Rs.. The addition of an amount of Rs.1,57,00,000/by the High Court towards income in the above backdrop is indefensible268. This item is not included in the list of income furnished by the DVAC. PW 182 has deposed about this loan through Exb.. The statement of account of Ramraj Agro Mills Limited is Exb.. This has been corroborated as well by PW 235 who has stated that an amount of Rs.1.65 crores had been sanctioned as loan. There is, however, no evidence with regard to the disbursement of any amount qua the loan sanctioned. In any case, the amount due to the bank at the relevant point of time in this account was Rs.. Therefore, addition of amount of Rs.1.65 crores, by no means, as done by the High Court, can be said to be justified269. There is no discussion about this head of loanby the Trial Courtpresumably due to the absence of any evidence with regard to disbursement of any amount in connection therewith. The High Court, however, has added an amount of Rs.1.65 crores without even referring to the evidence to ascertain as to whether any amount out of the loan sanctioned, in fact had been released in favour of the firm involvedIn any case, examination of Exb., the statement of account of Ramaraj Agro Mills Private Limited pertaining to this loan, discloses that, at the relevant time, the outstanding amount due to the bank was Rs.39,10,781/and thus, in any view of the matter, the High Court could not have added Rs.1.65 crores against this item270. This corresponds to item No. 6 of the heads of income cited by the DVAC and has been referred to by PW 182 who proved Ex7 in connection therewith. The amount due under this account at the relevant time was Rs.19,81,802/The Trial Court has considered the evidence, oral and documentary, to this effect and thus had accounted for this component while quantifying the total income of the respondents. In this premise, the High Court was not right in adding the entire sum of, as if the same had escaped the notice of DVAC or the Trial CourtThe High Court, thereafter, adjusting, i.e. the income quantified by the DVAC added Rs.18,17,46,000/(Rs.24,17,31,274 – Rs.5,99,85,274) to the income of the respondents272. In view of the abovethe High Court hasnot only erred in including the entire amount of loan encompassed in ten items, mentioned hereto before, but also premised its finding on income on an inflated and patently incorrect figure of Rs.. This addition of Rs.18,17,46,000/to the income of the respondents, as done by the High Court, is obviously erroneous and thus cannot be sustained285. In contradistinction, the High Court quantified the amount of gifts to be Rs.1.5 crores principally referring to the income tax returns and the orders of the authorities passed thereon. It did notice that there had been a delay in the submission of the income tax returns but accepted the plea of the defence acting on the orders of the income tax authorities. It seems to have been convinced as well by the contention that there was a practice of offering gifts to political leaders on their birthdays in the State. Not only is the ultimate conclusion of the High Court, de hors any independent assessment of the evidence to overturn the categorical finding of the Trial Court to the contrary, no convincing or persuasive reason is also forthcoming. This assumes significance also in view of the state of law that the findings of the income tax authorities/forums are not binding on a criminal court to readily accept the legality or lawfulness of the source of income as mentioned in the income tax returns by an assessee without any semblance of inquisition into the inherent merit of the materials on record relatable thereto. Not only this aspect was totally missed by the High Court, no attempt seems to have been made by it to appraise the evidence adduced by the parties in this regard, to come to aTo reiterate, disclosure of such giftsin the income tax returnsof A1 and theorders of the income tax authorities on the basis thereof, do not validate the said receipts to elevate the same to lawful income to repel the charge under Section 13(1)(e) thereof. The reliance of the defence on the decisions of this Court inM. Krishna Reddy (supra)and Kedari Lal (supra), in the facts and circumstances of the case, is of no avail299. We have examined the oral and documentary evidence referred to hereinabove to the extent warranted. Apart from the fact that the contents of the income tax returns, the profit and loss account and the balance sheet for the relevant assessment years, as well as the determination made by the income tax authorities on the basis thereof, are not final and binding on the criminal court, the investigative approach of the Trial Court visibly has been relatively exhaustive and searching qua every piece of evidence adduced as expected. Though the orders of the income tax authorities on the various aspects of the issue under consideration, reveal examination of the materials considered to be relevant therefrom in the limited perspective of computation of taxable income alone, we are left with the impression that High Court has not made any endeavour to appraise the evidence available, independent of documents/records pertaining to income tax assessments and the decision of the tax authorities to arrive at its conclusions. The income tax returns and the appendices thereto as well as the orders of the income tax authorities, to reiterate are neither decisive nor binding on the criminal court and the facts narrated therein, if fall for scrutiny in a criminal proceeding, have to be essentially addressed by adducing evidence to prove or disprove the same, as the case may be. Correspondingly, the court would be legally obliged to undertake an incised scrutiny thereof on its own to record its deduction therefrom300. The respondents having claimed the income of Rs.95,92,776/quantified by the DVAC, the onus was on them to prove the same. Even judged by the bench mark of balance of probabilities, in our view, the High Court in order to reverse the determination of the Trial Court, on the same set of evidence ought to have applied itself to examine and assess the evidence in this perspective301. The High Court, in our view, having regard to its approach has failed as an appellate forum and as a higher court of facts to appreciate the evidence in the correct legal context. The finding of the High Court, on this issue, thus, cannot be sustained306. In our view, as the evidence adduced by the defence did establish that Rs.43,75,132/had been paid as rent for the two premises in question, as identified under item nos. 53 & 54 in the list of income provided by the DVAC, the High Court was justified in adding Rs.3,22,000/Income of Jaya Publications and Namadhu MGR: | 1 | 95,208 | 3,949 | ### 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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contemplated in Section 13(1)(e) of 1988 Act, it is inessential as well to resort to any arithmetic to compute the percentage thereof. In any view of this matter, the decision of this Court in Krishnanand Agnihotri (supra) has no application in the facts of this case and therefore, the respondents cannot avail any benefit therefrom. 539. Both the Courts have construed all the assets, income and expenditure of all the accused collectively. We see no convincing reason to adopt a different course which even otherwise, having regard to the charge, is not warranted. 540. Noticeably, the respondents accused accepted all the findings of the High Court. We have analyzed the evidence adduced by the parties and we come to the conclusion that A1 to A4 have entered into a conspiracy and in furtherance of the same, A1 who was a public servant at the relevant time had come into possession of assets disproportionate to the known sources of her income during the check period and had got the same dispersed in the names of A2 to A4 and the firms & companies involved to hold these on her behalf with a masked front. Furthermore, the the charge of abetment laid against A2 to A4 in the commission of the offence by A1 also stands proved. 541. We have noticed that: In State Through Central Bureau of Investigation, New Delhi Vs. Jitender Kumar Singh, reported in (2014) 11 SCC 724 , this Court held that once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the P.C. Act to proceed against non-PC offences alongwith PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him. Therefore, we hold that as the sole public servant has died being A1 in this matter, in our opinion, though the appeals against her have abated, even then A2 to A4 are liable to be convicted and sentenced in the manner as has been held by the Trial Judge. The Trial Court held that even private individuals could be prosecuted for the offence under Section 109 of I.P.C. and we find that the Trial Court was right in coming to the conclusion relying on the decision of Nallammal (supra), wherein it was observed that acquisition and possession by a public servant was capable of being abetted, and observed that Under Section 3 of the 1988 Act, the Special Judge had the power to try offences punishing even abetment or conspiracy of the offences mentioned in the PC Act and in our opinion, the Trial Court correctly held in this matter that private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the 1988 Act committed by the public servant. Furthermore, the reasoning given by the Trial Court in respect of criminal conspiracy and abetment, after scrutinizing the evidence of this case, is correct in the face of the overwhelming evidence indicating the circumstances of active abetment and conspiracy by A2 to A4 in the commission of the above offences under Section 13(1)(e) of the 1988 Act. This would be evident from the following circumstances:- (i) A1 had executed a General Power of Attorney in favour of A2 in respect of Jaya Publications marked as Ex.P-995. The circumstance of executing the power of attorney in favour of A2 indicates that with a view to keep herself secured from legal complications, A1 executed the said power of attorney knowing fully well that under the said powers, A2 would be dealing with her funds credited to her account in Jaya Publications. (ii) Constitution of various firms during the check period is another circumstance establishing the conspiracy between the parties. It has come in evidence that 10 firms were constituted on a single day. In addition, A2 and A3 started independent concerns and apart from buying properties, no other business activity was undertaken by them. The circumstances proved in evidence undoubtedly establish that these firms are nothing but extentions of Namadhu MGR and Jaya Publications and they owed their existence to the benevolence of A1 and A2 (iii) The aforesaid firms and companies were operating from the residence of A1 and it cannot be accepted that she was unaware of the same even though she feigned ignorance about the activities carried on by A2 to A4. They were residing with A1 without any blood relation between them. (iv) Although A2 to A4 claims to have independent sources of income but the fact of constitution of firms and acquisition of large tracts of land out of the funds provided by A1 indicate that, all the accused congregated in the house of A1 neither for social living nor A1 allowed them free accommodation out of humanitarian concern, rather the facts and circumstances proved in evidence undoubtedly point out that A2 to A4 were accommodated in the house of A1 pursuant to the criminal conspiracy hatched by them to hold the assets of A1. (v) Ex.D.61 reveals that before the Income Tax Authorities, the representative of A1 himself had put forth an argument that Rs.1 crore was advanced by A1 to Sasi Enterprises towards share capital and further it was submitted that on the security of the said amount, loan was borrowed by A1, and thus she cannot claim noninvolvement with the firms. (vi) The flow of money from one account to the other proves that there existed active conspiracy to launder the illgotten wealth of A1 for purchasing properties in the names of the firms. (vii) The conspiracy among the accused persons is also proved by the evidence of Sub-Registrar, North Beach, Sub-Registrar office-PW.159 and the evidence of PW.71 Radha Krishnan, Horticultural officer. In our opinion, the Trial Court correctly came to the conclusion on such reasoning and we hereby uphold the same.
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the absence of any evidence with regard to disbursement of any amount in connection therewith. The High Court, however, has added an amount of Rs.1.65 crores without even referring to the evidence to ascertain as to whether any amount out of the loan sanctioned, in fact had been released in favour of the firm involvedIn any case, examination of Exb., the statement of account of Ramaraj Agro Mills Private Limited pertaining to this loan, discloses that, at the relevant time, the outstanding amount due to the bank was Rs.39,10,781/and thus, in any view of the matter, the High Court could not have added Rs.1.65 crores against this item270. This corresponds to item No. 6 of the heads of income cited by the DVAC and has been referred to by PW 182 who proved Ex7 in connection therewith. The amount due under this account at the relevant time was Rs.19,81,802/The Trial Court has considered the evidence, oral and documentary, to this effect and thus had accounted for this component while quantifying the total income of the respondents. In this premise, the High Court was not right in adding the entire sum of, as if the same had escaped the notice of DVAC or the Trial CourtThe High Court, thereafter, adjusting, i.e. the income quantified by the DVAC added Rs.18,17,46,000/(Rs.24,17,31,274 – Rs.5,99,85,274) to the income of the respondents272. In view of the abovethe High Court hasnot only erred in including the entire amount of loan encompassed in ten items, mentioned hereto before, but also premised its finding on income on an inflated and patently incorrect figure of Rs.. This addition of Rs.18,17,46,000/to the income of the respondents, as done by the High Court, is obviously erroneous and thus cannot be sustained285. In contradistinction, the High Court quantified the amount of gifts to be Rs.1.5 crores principally referring to the income tax returns and the orders of the authorities passed thereon. It did notice that there had been a delay in the submission of the income tax returns but accepted the plea of the defence acting on the orders of the income tax authorities. It seems to have been convinced as well by the contention that there was a practice of offering gifts to political leaders on their birthdays in the State. Not only is the ultimate conclusion of the High Court, de hors any independent assessment of the evidence to overturn the categorical finding of the Trial Court to the contrary, no convincing or persuasive reason is also forthcoming. This assumes significance also in view of the state of law that the findings of the income tax authorities/forums are not binding on a criminal court to readily accept the legality or lawfulness of the source of income as mentioned in the income tax returns by an assessee without any semblance of inquisition into the inherent merit of the materials on record relatable thereto. Not only this aspect was totally missed by the High Court, no attempt seems to have been made by it to appraise the evidence adduced by the parties in this regard, to come to aTo reiterate, disclosure of such giftsin the income tax returnsof A1 and theorders of the income tax authorities on the basis thereof, do not validate the said receipts to elevate the same to lawful income to repel the charge under Section 13(1)(e) thereof. The reliance of the defence on the decisions of this Court inM. Krishna Reddy (supra)and Kedari Lal (supra), in the facts and circumstances of the case, is of no avail299. We have examined the oral and documentary evidence referred to hereinabove to the extent warranted. Apart from the fact that the contents of the income tax returns, the profit and loss account and the balance sheet for the relevant assessment years, as well as the determination made by the income tax authorities on the basis thereof, are not final and binding on the criminal court, the investigative approach of the Trial Court visibly has been relatively exhaustive and searching qua every piece of evidence adduced as expected. Though the orders of the income tax authorities on the various aspects of the issue under consideration, reveal examination of the materials considered to be relevant therefrom in the limited perspective of computation of taxable income alone, we are left with the impression that High Court has not made any endeavour to appraise the evidence available, independent of documents/records pertaining to income tax assessments and the decision of the tax authorities to arrive at its conclusions. The income tax returns and the appendices thereto as well as the orders of the income tax authorities, to reiterate are neither decisive nor binding on the criminal court and the facts narrated therein, if fall for scrutiny in a criminal proceeding, have to be essentially addressed by adducing evidence to prove or disprove the same, as the case may be. Correspondingly, the court would be legally obliged to undertake an incised scrutiny thereof on its own to record its deduction therefrom300. The respondents having claimed the income of Rs.95,92,776/quantified by the DVAC, the onus was on them to prove the same. Even judged by the bench mark of balance of probabilities, in our view, the High Court in order to reverse the determination of the Trial Court, on the same set of evidence ought to have applied itself to examine and assess the evidence in this perspective301. The High Court, in our view, having regard to its approach has failed as an appellate forum and as a higher court of facts to appreciate the evidence in the correct legal context. The finding of the High Court, on this issue, thus, cannot be sustained306. In our view, as the evidence adduced by the defence did establish that Rs.43,75,132/had been paid as rent for the two premises in question, as identified under item nos. 53 & 54 in the list of income provided by the DVAC, the High Court was justified in adding Rs.3,22,000/Income of Jaya Publications and Namadhu MGR:
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Jhansi Development Authority, Jhansi Vs. Munna Lal Aggarwal and Others | 1. Delay condoned. Special leave is granted. Heard learned counsel for both the parties. 2. The dispute is narrow. Land acquisition proceedings were undertaken at the behest of Jhansi Development Authority, the appellant herein. Notification under Section 4 of Land Acquisition Act (as amended) was issued on 6-12-1985. As required by the said provision all modes of publication were resorted to. According to the appellants the local publication in the locality was made on 28-6-1986. Notification under Section 6 of the Act was issued on 23-7-1987 within a period of one year from the last publication of 26-6-1986. The High Court allowed the writ petition of the affected right-holders/respondents on the basis that since notification under Section 4 had officially been issued on 6-12-1985, the period of one year when computed therefrom had already elapsed and therefore notification under Section 6 issued on 23-7-1978 was ineffective. It appears that the High Court overlooked the bracketed portion occurring in sub-section (1) of Section 4. For purpose of reference, we reproduce sub-section (1) of Section 4 :- "Publication of preliminary notification and powers of officers thereupon. - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)." * 3. As is evident, the bracketed portion ordains that the last of the dates of such publication and the giving of public notice is, in the eye of law, the date of publication of notification. Sequelly the period of limitation of one year for the purposes of Section 6 is to be computed from the date of the last publication, which by itself is the date of the publication of the notification. Learned counsel for the respondent has not been able to dispute either factually or legally this proposition. However, it is asserted by her that Section 4 does not lay down the priorities in which modes of publication have to follow in order. She has even suggested that there is conflict of authority on the question between the Allahabad High Court and the Punjab and Haryana High Court. We would have, if necessary, gone on to resolve the controversy, if there be any, if the High Court had been called upon to examine it. Since the High Court has overlooked the factual as well as legal aspect of the case as afore-indicated, we would refrain ourselves from expressing any opinion thereon as to whether resolution of the suggested conflict is necessary or not, and would rather leave it to the High Court to opine on the matter afresh. | 1[ds]3. As is evident, the bracketed portion ordains that the last of the dates of such publication and the giving of public notice is, in the eye of law, the date of publication of notification. Sequelly the period of limitation of one year for the purposes of Section 6 is to be computed from the date of the last publication, which by itself is the date of the publication of the notification. Learned counsel for the respondent has not been able to dispute either factually or legally this proposition. However, it is asserted by her that Section 4 does not lay down the priorities in which modes of publication have to follow in order. She has even suggested that there is conflict of authority on the question between the Allahabad High Court and the Punjab and Haryana High Court. We would have, if necessary, gone on to resolve the controversy, if there be any, if the High Court had been called upon to examine it. Since the High Court has overlooked the factual as well as legal aspect of the case aswe would refrain ourselves from expressing any opinion thereon as to whether resolution of the suggested conflict is necessary or not, and would rather leave it to the High Court to opine on the matter afresh. | 1 | 569 | 239 | ### 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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1. Delay condoned. Special leave is granted. Heard learned counsel for both the parties. 2. The dispute is narrow. Land acquisition proceedings were undertaken at the behest of Jhansi Development Authority, the appellant herein. Notification under Section 4 of Land Acquisition Act (as amended) was issued on 6-12-1985. As required by the said provision all modes of publication were resorted to. According to the appellants the local publication in the locality was made on 28-6-1986. Notification under Section 6 of the Act was issued on 23-7-1987 within a period of one year from the last publication of 26-6-1986. The High Court allowed the writ petition of the affected right-holders/respondents on the basis that since notification under Section 4 had officially been issued on 6-12-1985, the period of one year when computed therefrom had already elapsed and therefore notification under Section 6 issued on 23-7-1978 was ineffective. It appears that the High Court overlooked the bracketed portion occurring in sub-section (1) of Section 4. For purpose of reference, we reproduce sub-section (1) of Section 4 :- "Publication of preliminary notification and powers of officers thereupon. - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)." * 3. As is evident, the bracketed portion ordains that the last of the dates of such publication and the giving of public notice is, in the eye of law, the date of publication of notification. Sequelly the period of limitation of one year for the purposes of Section 6 is to be computed from the date of the last publication, which by itself is the date of the publication of the notification. Learned counsel for the respondent has not been able to dispute either factually or legally this proposition. However, it is asserted by her that Section 4 does not lay down the priorities in which modes of publication have to follow in order. She has even suggested that there is conflict of authority on the question between the Allahabad High Court and the Punjab and Haryana High Court. We would have, if necessary, gone on to resolve the controversy, if there be any, if the High Court had been called upon to examine it. Since the High Court has overlooked the factual as well as legal aspect of the case as afore-indicated, we would refrain ourselves from expressing any opinion thereon as to whether resolution of the suggested conflict is necessary or not, and would rather leave it to the High Court to opine on the matter afresh.
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3. As is evident, the bracketed portion ordains that the last of the dates of such publication and the giving of public notice is, in the eye of law, the date of publication of notification. Sequelly the period of limitation of one year for the purposes of Section 6 is to be computed from the date of the last publication, which by itself is the date of the publication of the notification. Learned counsel for the respondent has not been able to dispute either factually or legally this proposition. However, it is asserted by her that Section 4 does not lay down the priorities in which modes of publication have to follow in order. She has even suggested that there is conflict of authority on the question between the Allahabad High Court and the Punjab and Haryana High Court. We would have, if necessary, gone on to resolve the controversy, if there be any, if the High Court had been called upon to examine it. Since the High Court has overlooked the factual as well as legal aspect of the case aswe would refrain ourselves from expressing any opinion thereon as to whether resolution of the suggested conflict is necessary or not, and would rather leave it to the High Court to opine on the matter afresh.
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Gouranga Chakraborty Vs. State Of Tripura And Anr | the said Act specifies the various offences under the Act. Section 19 of the said Chapter refers to offences (supra para 15). 23. All these offences are to be tried by the Security Force Court which will punish the offenders with sentences as provided in the Act. 24. Section 48 specifically provides that the Security Force Court may inflict punishment in respect of the offences committed by the person subject to the said Act. 25. A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment. The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder inasmuch as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act. Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules. It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in Section 48 and Section 50 of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause, is illegal and as such it is liable to be quashed and set aside. It has been further submitted that the power of the Commandant as Prescribed Officer under Section 11(2) is subject to sub-section (4) of Section 11 i.e. the exercise of this power is subject to the provisions of the Act and the Rules, that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure by the Act and the Rules framed thereunder. The power of the Commandant to order a member of the Force other than an officer or subordinate officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed, such an order cannot be made and enforced. It has, therefore, been submitted that the impugned judgment rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be set aside.26. It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authority under Section 11(2) to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal. 27. We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with the Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though no procedure has been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant. | 0[ds]25. A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment. The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder inasmuch as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act. Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules. It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in Section 48 and Section 50 of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause, is illegal and as such it is liable to be quashed and set aside. It has been further submitted that the power of the Commandant as Prescribed Officer under Section 11(2) is subject to sub-section (4) of Section 11 i.e. the exercise of this power is subject to the provisions of the Act and the Rules, that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure by the Act and the Rules framed thereunder. The power of the Commandant to order a member of the Force other than an officer or subordinate officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed, such an order cannot be made and enforced. It has, therefore, been submitted that the impugned judgment rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be setWe have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with the Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though no procedure has been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant | 0 | 3,010 | 900 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the said Act specifies the various offences under the Act. Section 19 of the said Chapter refers to offences (supra para 15). 23. All these offences are to be tried by the Security Force Court which will punish the offenders with sentences as provided in the Act. 24. Section 48 specifically provides that the Security Force Court may inflict punishment in respect of the offences committed by the person subject to the said Act. 25. A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment. The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder inasmuch as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act. Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules. It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in Section 48 and Section 50 of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause, is illegal and as such it is liable to be quashed and set aside. It has been further submitted that the power of the Commandant as Prescribed Officer under Section 11(2) is subject to sub-section (4) of Section 11 i.e. the exercise of this power is subject to the provisions of the Act and the Rules, that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure by the Act and the Rules framed thereunder. The power of the Commandant to order a member of the Force other than an officer or subordinate officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed, such an order cannot be made and enforced. It has, therefore, been submitted that the impugned judgment rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be set aside.26. It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authority under Section 11(2) to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal. 27. We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with the Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though no procedure has been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant.
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25. A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment. The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder inasmuch as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act. Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules. It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in Section 48 and Section 50 of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause, is illegal and as such it is liable to be quashed and set aside. It has been further submitted that the power of the Commandant as Prescribed Officer under Section 11(2) is subject to sub-section (4) of Section 11 i.e. the exercise of this power is subject to the provisions of the Act and the Rules, that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure by the Act and the Rules framed thereunder. The power of the Commandant to order a member of the Force other than an officer or subordinate officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed, such an order cannot be made and enforced. It has, therefore, been submitted that the impugned judgment rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be setWe have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with the Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. The provision of sub-section (4) of Section 11 which enjoins that the exercise of the power under the aforesaid section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave any reasonable cause or for overstaying leave without sufficient cause and holding him as undesirable cannot be exercised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law. The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules. It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case. In this case though no procedure has been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause. The appellant did not avail of this opportunity and he did not file any show cause to the said notice. Thus the principle of natural justice was not violated as has been rightly held by the High Court. No other point has been urged before us by the learned counsel appearing on behalf of the appellant
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Swiss Timing Limited Vs. Organising Committee, Commonwealth Games 2010, Delhi | Another factor that weighed with Court in dismissing the Petition, it appears, is that the Petitioner did not conform to the procedure concerning appointment of the Arbitrator before filing the Petition under Section 11 (6). 33. This case is clearly distinguishable and hence is not applicable into the facts and circumstances of the present case because of the following reasons: Firstly, there has been no conviction in the present case, though the trial has been going on against the officials of both the parties. Secondly, there is no injunction or any other order restraining the Petitioner from invoking the Arbitration Clause. Lastly, all the conditions precedent for invoking the arbitration clause have been satisfied by the Petitioner, as observed earlier. 34. The respondent had relied on the judgment of this Court in Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash & Ors. [(2013) 7 SCC 622] This judgment reiterates the normal rule which was stated by the Constitution Bench of this Court in M.S.Sheriff Vs. State of Madras in relation to the simultaneous prosecution of the criminal proceeding with the civil suit. In the aforesaid case, the Constitution Bench had observed as follows:- “14. … It was said that the simultaneous prosecution of these matters will embarrass the accused. … but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.” 35. The purpose of the aforesaid solitary rule is to avoid embarrassment to the accused. In contrast, the findings recorded by the arbitral tribunal in its award would not be binding in criminal proceedings. Even otherwise, the Constitution Bench in the aforesaid case has clearly held that no hard and fast rule can be laid down that civil proceedings in all matters ought to be stayed when criminal proceedings are also pending. As I have indicated earlier in case the award is made in favour of the petitioner herein, the respondents will be at liberty to resist the enforcement of the same on the ground of subsequent conviction of either the Chairman or the officials of the contracting parties. 36. It must also notice here that the Petitioners relied upon an earlier order of this court in the case of M/s Nussli (Switzerland) Ltd. (supra). The aforesaid order, however, seems to have been passed on a consensus between the learned counsel for the parties. This is evident from the following observations in the aforesaid order: “In view of the aforesaid order, learned senior counsel for both the parties have agreed that the parties have agreed that the matter ought to be referred to Arbitration. However, Mr. Gopal Subramaniam, learned senior counsel appearing for the Respondent, submits that serious issued would arise which are currently under investigation of the CBI, which may ultimately culminate into certain conclusions which could result in the invalidation of the contract from inception.He has, however, very fairly stated that there would be no impediment for the arbitral Tribunal to look into all the issues including the allegations which are pending with the CBI in investigation.I am of the opinion that the submission made by the learned senior counsel is in accordance with the law settled, not only by this Court, but in other jurisdictions also concerning the international commercial arbitrations.” The aforesaid excerpt clearly shows that Mr. Gopal Subramaniam, had very fairly agreed to proceed with arbitration. The decision of this Court in M/s Nussli (Switzerland) Ltd. (supra) has not laid down any law. 37. As noticed earlier, the petitioners have already nominated Hon’ble Mr. Justice S.N. Variava, Former Judge of this Court, having his office at Readymoney Mansion, 2nd floor, Next to Akbarallys, Veer Nariman Road, Fort, Mumbai – 400 001, as their arbitrator. I hereby nominate. Hon’ble Mr. Justice B.P. Singh, Former Judge of this Court, R/o A-7, Neeti Bagh, 3rd Floor, New Delhi – 110 049, as the second Arbitrator and Hon’be Mr. Justice Kuldip Singh, Former Judge of this Court, R/o H.No. 88, Sector 10A, Chandigarh – 160 010, as the Chairman of the Arbitral Tribunal, to adjudicate the disputes that have arisen between the parties, on such terms and conditions as they deem fit and proper. | 1[ds]15. I am unable to agree with the submission made by the learned counsel for the respondent that the petitioner has not satisfied the condition precedent under Clause 38.3.A perusal of the correspondence placed on the record of the petition clearly shows that not only the petitioner but even the ambassadors of the various governments had made considerable efforts to resolve the issue without having to take recourse to formal arbitration. It is only when all these efforts failed, that the petitioner communicated to the respondent its intention to commence arbitration by letter /notice dated 22nd April, 2013. This was preceded by letters dated 4th February, 2011, 14th March, 2011 and 20th April, 2011 which clearly reflect the efforts made by the petitioner to resolve disputes through discussions and negotiations before sending the notice invoking arbitration clause.16. It is evident from the counter affidavit filed by the respondents that the disputes have arisen between the parties out of or relating to the agreement dated 11th March, 2010. On the one hand, the respondent disputes the claims made by the petitioner and on the other, it takes the plea that efforts were made to amicably put aI, therefore, do not find any merit in the submission of the respondent that the petition is not maintainable for non-compliance with Clause 38.3 of the Dispute Resolution Clause.17. The second preliminary objection raised by the respondent is on the ground that the contract stands vitiated and is void-ab-initio in view of Clauses 29, 30 and 34 of the agreement dated 11th March, 2010. I am of the considered opinion that the aforesaid preliminary objection is without any substance. Under Clause 29, both sides have given a warranty not to indulge in corrupt practices to induce execution of the Agreement. Clause 34 empowers the Organising Committee to terminate the contract after deciding that the contract was executed in breach of the undertaking given in Clause 29 of the Contract. These are allegations which will have to be established in a proper forum on the basis of the oral and documentary evidence, produced by the parties, in support of their respective claims. The objection taken is to the manner in which the grant of the contract was manipulated in favour of the petitioner. The second ground is that the rates charged by the petitioner were exorbitant. Both these issues can be taken care of in the award. Certainly if the respondent is able to produce sufficient evidence to show that the similar services could have been procured for a lesser price, the arbitral tribunal would take the same into account whilst computing the amounts payable to the petitioner. As a pure question of law, I am unable to accept the very broad proposition that whenever a contract is said to be void-ab-initio, the Courts exercising jurisdiction under Section 8 and Section 11 of the Arbitration Act, 1996 are rendered powerless to refer the disputes to arbitration.Having found that the subject matter of the suit was within the jurisdiction of the arbitration, it was held that the disputes can not be referred to arbitration. This Court approved the finding of the High Court that since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in court through furtherance of detailed evidence by either parties and such a situation can not be properly gone into by the arbitrator.In my opinion, the observations in Hindustan Petroleum Corpn. Ltd. (supra) lays down the correct law. Although, reference has been made to the aforesaid observations in N. Radhakrishnan (supra) but the same have not been distinguished.Keeping in view the aforesaid observations made by this Court, I see no reason to accept the submission made by the learned counsel for the respondents that since a criminal case has been registered against the Chairman of the Organising Committee and some other officials of the petitioner, this Court would have no jurisdiction to make a reference to arbitration.I am of the opinion that whenever a plea is taken to avoid arbitration on the ground that the underlying contract is void, the Court is required to ascertain the true nature of the defence. Often, the termsare confused and used loosely and interchangeably with each other. Therefore, the Court ought to examine the plea by keeping in mind the relevant statutory provisions in the Indian Contract Act, 1872, defining the terms0. In the present case, it is pleaded that the manner in which the contract was made between the petitioner and the respondent was investigated by the CBI. As a part of the investigation, the CBI had seized all the original documents and the record from the office of the respondent. After investigation, the criminal case CC No.22 of 2011 has been registered, as noticed earlier. It is claimed that in the event the Chairman of the Organising Committee and the other officials who manipulated the grant of contract in favour of the respondent are found guilty in the criminal trial, no amount would be payable to the petitioner. Therefore, it would be appropriate to await the decision of the criminal proceedings before the arbitral tribunal is constituted to go into the alleged disputes between the parties. I am unable to accept the aforesaid submission made by the learned counsel for the respondents, for the reasons stated in the previous paragraphs. The balance of convenience is tilted more in favour of permitting the arbitration proceedings to continue rather than to bring the same to a grinding halt. | 1 | 8,049 | 999 | ### 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:
Another factor that weighed with Court in dismissing the Petition, it appears, is that the Petitioner did not conform to the procedure concerning appointment of the Arbitrator before filing the Petition under Section 11 (6). 33. This case is clearly distinguishable and hence is not applicable into the facts and circumstances of the present case because of the following reasons: Firstly, there has been no conviction in the present case, though the trial has been going on against the officials of both the parties. Secondly, there is no injunction or any other order restraining the Petitioner from invoking the Arbitration Clause. Lastly, all the conditions precedent for invoking the arbitration clause have been satisfied by the Petitioner, as observed earlier. 34. The respondent had relied on the judgment of this Court in Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash & Ors. [(2013) 7 SCC 622] This judgment reiterates the normal rule which was stated by the Constitution Bench of this Court in M.S.Sheriff Vs. State of Madras in relation to the simultaneous prosecution of the criminal proceeding with the civil suit. In the aforesaid case, the Constitution Bench had observed as follows:- “14. … It was said that the simultaneous prosecution of these matters will embarrass the accused. … but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.” 35. The purpose of the aforesaid solitary rule is to avoid embarrassment to the accused. In contrast, the findings recorded by the arbitral tribunal in its award would not be binding in criminal proceedings. Even otherwise, the Constitution Bench in the aforesaid case has clearly held that no hard and fast rule can be laid down that civil proceedings in all matters ought to be stayed when criminal proceedings are also pending. As I have indicated earlier in case the award is made in favour of the petitioner herein, the respondents will be at liberty to resist the enforcement of the same on the ground of subsequent conviction of either the Chairman or the officials of the contracting parties. 36. It must also notice here that the Petitioners relied upon an earlier order of this court in the case of M/s Nussli (Switzerland) Ltd. (supra). The aforesaid order, however, seems to have been passed on a consensus between the learned counsel for the parties. This is evident from the following observations in the aforesaid order: “In view of the aforesaid order, learned senior counsel for both the parties have agreed that the parties have agreed that the matter ought to be referred to Arbitration. However, Mr. Gopal Subramaniam, learned senior counsel appearing for the Respondent, submits that serious issued would arise which are currently under investigation of the CBI, which may ultimately culminate into certain conclusions which could result in the invalidation of the contract from inception.He has, however, very fairly stated that there would be no impediment for the arbitral Tribunal to look into all the issues including the allegations which are pending with the CBI in investigation.I am of the opinion that the submission made by the learned senior counsel is in accordance with the law settled, not only by this Court, but in other jurisdictions also concerning the international commercial arbitrations.” The aforesaid excerpt clearly shows that Mr. Gopal Subramaniam, had very fairly agreed to proceed with arbitration. The decision of this Court in M/s Nussli (Switzerland) Ltd. (supra) has not laid down any law. 37. As noticed earlier, the petitioners have already nominated Hon’ble Mr. Justice S.N. Variava, Former Judge of this Court, having his office at Readymoney Mansion, 2nd floor, Next to Akbarallys, Veer Nariman Road, Fort, Mumbai – 400 001, as their arbitrator. I hereby nominate. Hon’ble Mr. Justice B.P. Singh, Former Judge of this Court, R/o A-7, Neeti Bagh, 3rd Floor, New Delhi – 110 049, as the second Arbitrator and Hon’be Mr. Justice Kuldip Singh, Former Judge of this Court, R/o H.No. 88, Sector 10A, Chandigarh – 160 010, as the Chairman of the Arbitral Tribunal, to adjudicate the disputes that have arisen between the parties, on such terms and conditions as they deem fit and proper.
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### Explanation:
15. I am unable to agree with the submission made by the learned counsel for the respondent that the petitioner has not satisfied the condition precedent under Clause 38.3.A perusal of the correspondence placed on the record of the petition clearly shows that not only the petitioner but even the ambassadors of the various governments had made considerable efforts to resolve the issue without having to take recourse to formal arbitration. It is only when all these efforts failed, that the petitioner communicated to the respondent its intention to commence arbitration by letter /notice dated 22nd April, 2013. This was preceded by letters dated 4th February, 2011, 14th March, 2011 and 20th April, 2011 which clearly reflect the efforts made by the petitioner to resolve disputes through discussions and negotiations before sending the notice invoking arbitration clause.16. It is evident from the counter affidavit filed by the respondents that the disputes have arisen between the parties out of or relating to the agreement dated 11th March, 2010. On the one hand, the respondent disputes the claims made by the petitioner and on the other, it takes the plea that efforts were made to amicably put aI, therefore, do not find any merit in the submission of the respondent that the petition is not maintainable for non-compliance with Clause 38.3 of the Dispute Resolution Clause.17. The second preliminary objection raised by the respondent is on the ground that the contract stands vitiated and is void-ab-initio in view of Clauses 29, 30 and 34 of the agreement dated 11th March, 2010. I am of the considered opinion that the aforesaid preliminary objection is without any substance. Under Clause 29, both sides have given a warranty not to indulge in corrupt practices to induce execution of the Agreement. Clause 34 empowers the Organising Committee to terminate the contract after deciding that the contract was executed in breach of the undertaking given in Clause 29 of the Contract. These are allegations which will have to be established in a proper forum on the basis of the oral and documentary evidence, produced by the parties, in support of their respective claims. The objection taken is to the manner in which the grant of the contract was manipulated in favour of the petitioner. The second ground is that the rates charged by the petitioner were exorbitant. Both these issues can be taken care of in the award. Certainly if the respondent is able to produce sufficient evidence to show that the similar services could have been procured for a lesser price, the arbitral tribunal would take the same into account whilst computing the amounts payable to the petitioner. As a pure question of law, I am unable to accept the very broad proposition that whenever a contract is said to be void-ab-initio, the Courts exercising jurisdiction under Section 8 and Section 11 of the Arbitration Act, 1996 are rendered powerless to refer the disputes to arbitration.Having found that the subject matter of the suit was within the jurisdiction of the arbitration, it was held that the disputes can not be referred to arbitration. This Court approved the finding of the High Court that since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in court through furtherance of detailed evidence by either parties and such a situation can not be properly gone into by the arbitrator.In my opinion, the observations in Hindustan Petroleum Corpn. Ltd. (supra) lays down the correct law. Although, reference has been made to the aforesaid observations in N. Radhakrishnan (supra) but the same have not been distinguished.Keeping in view the aforesaid observations made by this Court, I see no reason to accept the submission made by the learned counsel for the respondents that since a criminal case has been registered against the Chairman of the Organising Committee and some other officials of the petitioner, this Court would have no jurisdiction to make a reference to arbitration.I am of the opinion that whenever a plea is taken to avoid arbitration on the ground that the underlying contract is void, the Court is required to ascertain the true nature of the defence. Often, the termsare confused and used loosely and interchangeably with each other. Therefore, the Court ought to examine the plea by keeping in mind the relevant statutory provisions in the Indian Contract Act, 1872, defining the terms0. In the present case, it is pleaded that the manner in which the contract was made between the petitioner and the respondent was investigated by the CBI. As a part of the investigation, the CBI had seized all the original documents and the record from the office of the respondent. After investigation, the criminal case CC No.22 of 2011 has been registered, as noticed earlier. It is claimed that in the event the Chairman of the Organising Committee and the other officials who manipulated the grant of contract in favour of the respondent are found guilty in the criminal trial, no amount would be payable to the petitioner. Therefore, it would be appropriate to await the decision of the criminal proceedings before the arbitral tribunal is constituted to go into the alleged disputes between the parties. I am unable to accept the aforesaid submission made by the learned counsel for the respondents, for the reasons stated in the previous paragraphs. The balance of convenience is tilted more in favour of permitting the arbitration proceedings to continue rather than to bring the same to a grinding halt.
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M. A. Rasheed And Ors Vs. The State Of Kerala | of coconut husks for production of fibre in the traditional sector in the remaining 8 districts of the State it is not necessary in the prevailing circumstances to prohibit the use of mahinery in the remaining 8 districts for the production of fibre.18. The appellants also contended that Section 3 (2) (21) of the Defence of India Act does not support Rule 114 and secondly Section 38 of the Defence of India Act confers power on the authority to make orders providing inter alia for the control of trade of industry for the purpose of regulating or increasing the supply of, or for maintaining supplies and services essential to the life of the community. Rule 114 is in complete consonance with the powers conferred under the aforesaid Section 3 (2)(21). Section 38 of the Defence of India Act states that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence. It is a matter of policy for the State Government to decide to what extend there should be interference in relation to the enjoyment of property. The public interest is of paramount consideration. In the present case the steps taken are in the larger interests of labour engaged in the coir industry. The pre-eminent question is that it is an emergency legislation. In emergency legislation the causes for inducing the formation of the opinion are that coir is one of the most labour intensive industries in Kerala and it is estimated that more than 4 1/2 lakhs of workers are employed in the various processes of the coir industry like retting, hand-spinning, spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend on this industry for their sustenance. Mechanisation in coir industry has been taking place in different parts of the State. The non-mechanised sector of this industry is so labour intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high consumption of coconut husks by the mechanised units and the consequent enhancement of price of husks and the non-availability of sufficient quantity of husks at fair price for use in the traditional sector viz., hand beating of husks. There have been serious tensions including law and order situations.19. Because of the very high consumption of coconut husks for the production of fibre by using machinery and the enhancement of the price of such husks, sufficient quantities of such husks are not available at fair prices in the districts of Trivandrum, Quilon and Alleppey for use in the traditional sector. Therefore for securing the equitable distribution and availability at fair prices of coconut husks in the said three districts for production of fibre in the traditional sector, it is necessary to prohibit use of machinery in these three districts.20. The State Government found on materials that use of machines affected the availability of retted coconut husks for equitable distribution at fair prices. The notification is on the consideration of relevant and useful material. The opinion of the State Government cannot be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. The materials supporting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists and a course of action is reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices.21. The notification is issued after due care and caution on the basis of reliable and sufficient data obtained by proper investigation and enquiries. The Government took notice of Section 38 of the Defence of India Act. The Government became satisfied about the public interest. The notification does not interfere with the avocations and enjoyment of property any more than is necessary for those purposes of equitable distribution of husks at fair price to the traditional sector.22. An argument was advanced that the notification offended Art. 14. The course of action which the State adopted is that it became necessary to prohibit the use of machinery in the districts of Trivandrum, Quilon and Alleppey in the traditional sector. It appears that out of 414 mechanised units in the State 283 units are in the Southern region of Kerala State consisting of Trivandrum, Quilon and Alleppey and the balance 131 mechanised units are in the remaining 8 districts of the State. The use of machinery for the purpose of extraction of fibre from husks in the region other than Trivandrun, Quilon and Alleppey districts has not at present affected the supply and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the three Districts. The situation in the 8 districts does not require action at present moment. The clasification is reasonable. It bears a nexus to the objects sought to be achieved by the impugned notification. In order to secure equitable distribution and availability at fair prices of coconut husks in the remaining 8 districts of the State for production of fibre in the traditional sector, it is not necessary in the prevailing conditions to prohibit the use of machinery in the remaining 8 districts.23. It was also submitted that the notification offended Article 301, Article 302 states that the State can impose restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India. It was said that the Defence of India Act is not a law made by Parliament, imposing restrictions as contemplated under Article 302. The Defence of India Act has been passed by Parliament. The Rules under the Actt have legislative sanction. The restrictions are imposed in the interest of the general public. The restrictions are reasonable in the interest of the industry and public. | 0[ds]6. There is no principle or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised, whatever may be the procedure prescribed and whatever may be the nature of the authority conferred, the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputedWhere powers are conferred on public authorities to exercise the same when "they are satisfied or when "it appears to them, or when "in their opinion a certain state of affairs exists; or when powers enable public authorities to take "such action as they think fit in relation to a subject matter, the Courts will not readily defer to the conclusiveness of an executive authoritys opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.It is in evidence that mechanisation progressed at a fairly high rate in the three districts of Trivandrum, Quilon and Alleppey. Out of 414 mechanised units in the whole of the Kerala State consisting of 11 districts 283 are in these three districts alone. There is a heavy concentration of mechanised units in the three districts. The figure given is that only 10 workers are required for de-fibring husks of 12000 coconuts a working day of 8 hours by the use of machines as against 120 workers by the process known as hand-method. The mechanical work in done quickly to consume coconut husks in very large quantities. There has been large scale unemployment of labour engaged in the traditional method and there is serious unrest in the ares.The appellants also contended that Section 3 (2) (21) of the Defence of India Act does not support Rule 114 and secondly Section 38 of the Defence of India Act confers power on the authority to make orders providing inter alia for the control of trade of industry for the purpose of regulating or increasing the supply of, or for maintaining supplies and services essential to the life of the community. Rule 114 is in complete consonance with the powers conferred under the aforesaid Section 3 (2)(21). Section 38 of the Defence of India Act states that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence. It is a matter of policy for the State Government to decide to what extend there should be interference in relation to the enjoyment of property. The public interest is of paramount consideration. In the present case the steps taken are in the larger interests of labour engaged in the coir industry. The pre-eminent question is that it is an emergency legislation. In emergency legislation the causes for inducing the formation of the opinion are that coir is one of the most labour intensive industries in Kerala and it is estimated that more than 4 1/2 lakhs of workers are employed in the various processes of the coir industry like retting, hand-spinning, spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend on this industry for their sustenance. Mechanisation in coir industry has been taking place in different parts of the State. The non-mechanised sector of this industry is so labour intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high consumption of coconut husks by the mechanised units and the consequent enhancement of price of husks and the non-availability of sufficient quantity of husks at fair price for use in the traditional sector viz., hand beating of husks. There have been serious tensions including law and order situations.It was also submitted that the notification offended Article 301, Article 302 states that the State can impose restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India. It was said that the Defence of India Act is not a law made by Parliament, imposing restrictions as contemplated under Article 302. The Defence of India Act has been passed by Parliament. The Rules under the Actt have legislative sanction. The restrictions are imposed in the interest of the general public. The restrictions are reasonable in the interest of the industry and public. | 0 | 3,497 | 812 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
of coconut husks for production of fibre in the traditional sector in the remaining 8 districts of the State it is not necessary in the prevailing circumstances to prohibit the use of mahinery in the remaining 8 districts for the production of fibre.18. The appellants also contended that Section 3 (2) (21) of the Defence of India Act does not support Rule 114 and secondly Section 38 of the Defence of India Act confers power on the authority to make orders providing inter alia for the control of trade of industry for the purpose of regulating or increasing the supply of, or for maintaining supplies and services essential to the life of the community. Rule 114 is in complete consonance with the powers conferred under the aforesaid Section 3 (2)(21). Section 38 of the Defence of India Act states that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence. It is a matter of policy for the State Government to decide to what extend there should be interference in relation to the enjoyment of property. The public interest is of paramount consideration. In the present case the steps taken are in the larger interests of labour engaged in the coir industry. The pre-eminent question is that it is an emergency legislation. In emergency legislation the causes for inducing the formation of the opinion are that coir is one of the most labour intensive industries in Kerala and it is estimated that more than 4 1/2 lakhs of workers are employed in the various processes of the coir industry like retting, hand-spinning, spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend on this industry for their sustenance. Mechanisation in coir industry has been taking place in different parts of the State. The non-mechanised sector of this industry is so labour intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high consumption of coconut husks by the mechanised units and the consequent enhancement of price of husks and the non-availability of sufficient quantity of husks at fair price for use in the traditional sector viz., hand beating of husks. There have been serious tensions including law and order situations.19. Because of the very high consumption of coconut husks for the production of fibre by using machinery and the enhancement of the price of such husks, sufficient quantities of such husks are not available at fair prices in the districts of Trivandrum, Quilon and Alleppey for use in the traditional sector. Therefore for securing the equitable distribution and availability at fair prices of coconut husks in the said three districts for production of fibre in the traditional sector, it is necessary to prohibit use of machinery in these three districts.20. The State Government found on materials that use of machines affected the availability of retted coconut husks for equitable distribution at fair prices. The notification is on the consideration of relevant and useful material. The opinion of the State Government cannot be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. The materials supporting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists and a course of action is reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices.21. The notification is issued after due care and caution on the basis of reliable and sufficient data obtained by proper investigation and enquiries. The Government took notice of Section 38 of the Defence of India Act. The Government became satisfied about the public interest. The notification does not interfere with the avocations and enjoyment of property any more than is necessary for those purposes of equitable distribution of husks at fair price to the traditional sector.22. An argument was advanced that the notification offended Art. 14. The course of action which the State adopted is that it became necessary to prohibit the use of machinery in the districts of Trivandrum, Quilon and Alleppey in the traditional sector. It appears that out of 414 mechanised units in the State 283 units are in the Southern region of Kerala State consisting of Trivandrum, Quilon and Alleppey and the balance 131 mechanised units are in the remaining 8 districts of the State. The use of machinery for the purpose of extraction of fibre from husks in the region other than Trivandrun, Quilon and Alleppey districts has not at present affected the supply and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the three Districts. The situation in the 8 districts does not require action at present moment. The clasification is reasonable. It bears a nexus to the objects sought to be achieved by the impugned notification. In order to secure equitable distribution and availability at fair prices of coconut husks in the remaining 8 districts of the State for production of fibre in the traditional sector, it is not necessary in the prevailing conditions to prohibit the use of machinery in the remaining 8 districts.23. It was also submitted that the notification offended Article 301, Article 302 states that the State can impose restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India. It was said that the Defence of India Act is not a law made by Parliament, imposing restrictions as contemplated under Article 302. The Defence of India Act has been passed by Parliament. The Rules under the Actt have legislative sanction. The restrictions are imposed in the interest of the general public. The restrictions are reasonable in the interest of the industry and public.
### Response:
0
### Explanation:
6. There is no principle or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised, whatever may be the procedure prescribed and whatever may be the nature of the authority conferred, the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputedWhere powers are conferred on public authorities to exercise the same when "they are satisfied or when "it appears to them, or when "in their opinion a certain state of affairs exists; or when powers enable public authorities to take "such action as they think fit in relation to a subject matter, the Courts will not readily defer to the conclusiveness of an executive authoritys opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.It is in evidence that mechanisation progressed at a fairly high rate in the three districts of Trivandrum, Quilon and Alleppey. Out of 414 mechanised units in the whole of the Kerala State consisting of 11 districts 283 are in these three districts alone. There is a heavy concentration of mechanised units in the three districts. The figure given is that only 10 workers are required for de-fibring husks of 12000 coconuts a working day of 8 hours by the use of machines as against 120 workers by the process known as hand-method. The mechanical work in done quickly to consume coconut husks in very large quantities. There has been large scale unemployment of labour engaged in the traditional method and there is serious unrest in the ares.The appellants also contended that Section 3 (2) (21) of the Defence of India Act does not support Rule 114 and secondly Section 38 of the Defence of India Act confers power on the authority to make orders providing inter alia for the control of trade of industry for the purpose of regulating or increasing the supply of, or for maintaining supplies and services essential to the life of the community. Rule 114 is in complete consonance with the powers conferred under the aforesaid Section 3 (2)(21). Section 38 of the Defence of India Act states that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence. It is a matter of policy for the State Government to decide to what extend there should be interference in relation to the enjoyment of property. The public interest is of paramount consideration. In the present case the steps taken are in the larger interests of labour engaged in the coir industry. The pre-eminent question is that it is an emergency legislation. In emergency legislation the causes for inducing the formation of the opinion are that coir is one of the most labour intensive industries in Kerala and it is estimated that more than 4 1/2 lakhs of workers are employed in the various processes of the coir industry like retting, hand-spinning, spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend on this industry for their sustenance. Mechanisation in coir industry has been taking place in different parts of the State. The non-mechanised sector of this industry is so labour intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high consumption of coconut husks by the mechanised units and the consequent enhancement of price of husks and the non-availability of sufficient quantity of husks at fair price for use in the traditional sector viz., hand beating of husks. There have been serious tensions including law and order situations.It was also submitted that the notification offended Article 301, Article 302 states that the State can impose restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India. It was said that the Defence of India Act is not a law made by Parliament, imposing restrictions as contemplated under Article 302. The Defence of India Act has been passed by Parliament. The Rules under the Actt have legislative sanction. The restrictions are imposed in the interest of the general public. The restrictions are reasonable in the interest of the industry and public.
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