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State Of Uttaranchal Vs. M/S. Golden Forest Co. (P) Ltd | G.S. Singhvi, J. 1. Leave granted.2. The only question which arises for consideration in these appeals is whether the Board of Revenue, U.P. could hear and decide the revisions filed by the appellant after creation of the State of Uttranchal (renamed as Uttrakhand) by the Uttar Pradesh Reorganisation Act, 2000 (for short "the Reorganisation Act"). 3. One Sanjay Ghai had purchased bhumidhari land from various tenure holders in the name of Golden Forest India Limited and its sister concerns, namely, Indian Peace Foundation Trust, Mani Majra, Chandigarh, Golden Forest India Limited, Golden Agro Forest Limited and Golden Forest Distributors Limited. Tehsildar, Dehradun, submitted report dated 12.08.1997 to Assistant Collector 1st Class-cum-Sub Divisional Magistrate (for short "the Assistant Collector") with the finding that the purchases made in the name of the respondents were violative of the restriction contained in Section 154 (1) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short "the Act"). He suggested that action may be initiated against them under Sections 166/167 of the Act and land in excess of the ceiling may be declared to have vested in the State Government. The Assistant Collector issued notice to the respondents, gave them opportunity of hearing and passed order dated 21.08.1997 whereby he held that the disputed transactions were ultra vires the provisions contained in Section 154(1) of the Act and forwarded the matter to Collector, Dehradun for taking action under Section 167(2) of the Act.4. The respondents challenged the aforesaid order by filing revisions, which were allowed by the Board of Revenue, U.P. vide order dated 24.11.2000 by observing that in terms of Section 154(1) of the Act each major person or company is entitled to purchase 12.5 acres land and the purchases made in the names of different companies cannot be clubbed for deciding the issue relating to violation of that section.5. The State of Uttar Pradesh challenged the order of the Board of Revenue in Writ Petition No. 81 (M/S) of 2000. The State of Uttranchal also challenged that order in Writ Petition Nos. 2046 (M/S) -2049(M/S) and 2051(M/S) - 2053(M/S) of 2001 on several grounds including the one that after coming into force of the Reorganisation Act, the Board of Revenue, U.P. did not have the jurisdiction to deal with and decide the revisions filed by the respondents.6. The Learned Single Judge did not deal with the issue of jurisdiction and dismissed the writ petitions by observing that the conclusion recorded by the Board of Revenue, U.P. on the legality of the disputed transaction was correct.7. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant argued that in view of Section 91 of the Reorganisation Act, the proceedings pending before the Board of Revenue, U.P. stood transferred to the newly created State of Uttranchal and, as such, it did not have the jurisdiction to decide the revisions filed by the respondents. Learned senior counsel pointed out that the Reorganisation Act had come into force w.e.f. 09.11.2000 and, therefore, the Board of Revenue, U.P. could not have decided the revisions on 24.11.2000.8. Shri Vijay Hansaria, learned senior counsel appearing for the respondents argued that the appellant cannot question the orders passed by the Board of Revenue, U.P. on the ground of lack of jurisdiction because no such objection was raised at the hearing of the revision petitions. Learned senior counsel further argued that this Court may not interfere with the impugned order because the land purchased in the names of the respondents had already been divided into plots and allotted to various persons, who are not parties in these cases. 9. We have considered the respective submissions. Section 91 of the Reorganisation Act reads thus: "91. Transfer of pending proceedings.--(1) Every proceeding pending immediately before the appointed day before a court (other than High Court), tribunal, authority or officer in any area which on that day falls within the State of Uttar Pradesh shall, if it is a proceeding relating exclusively to the territory, which as from that day are the territories of Uttaranchal State, stand transferred to the corresponding court, tribunal, authority or officer of that State.(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1) it shall be referred to the High Court at Allahabad and the decision of that High Court shall be final.(3) In this section--(a)"proceeding" includes any suit, case or appeal; and(b)"corresponding court, tribunal, authority or officer" in the State of Uttaranchal means—(i) the court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day; or(ii) in case of doubt, such court, tribunal, authority, or officer in that State, as may be determined after the appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of Uttar Pradesh to be the corresponding court, tribunal, authority or officer." 10. A reading of the plain language of the above reproduced provision makes it clear that every proceeding pending before a Court, Tribunal, Authority or Officer in any area which fell within the State of U.P. on 09.11.2000 stood automatically transferred to the corresponding Court, Tribunal, Authority or Officer of the State of Uttranchal (now Uttrakhand). Therefore, the revisions which were pending before the Board of Revenue, U.P. on 9.11.2000 stood transferred to the State of Uttranchal and, as such, the same could not have been decided by the Board of Revenue, U.P. Unfortunately, the learned Single Judge over looked the fatal flaw in the order of the Board of Revenue, U.P. and pronounced upon the legality of the purchases made in the names of the respondents. | 1[ds]10. A reading of the plain language of the above reproduced provision makes it clear that every proceeding pending before a Court, Tribunal, Authority or Officer in any area which fell within the State of U.P. on 09.11.2000 stood automatically transferred to the corresponding Court, Tribunal, Authority or Officer of the State of Uttranchal (now Uttrakhand). Therefore, the revisions which were pending before the Board of Revenue, U.P. on 9.11.2000 stood transferred to the State of Uttranchal and, as such, the same could not have been decided by the Board of Revenue, U.P. Unfortunately, the learned Single Judge over looked the fatal flaw in the order of the Board of Revenue, U.P. and pronounced upon the legality of the purchases made in the names of the respondents. | 1 | 1,141 | 151 | ### Instruction:
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G.S. Singhvi, J. 1. Leave granted.2. The only question which arises for consideration in these appeals is whether the Board of Revenue, U.P. could hear and decide the revisions filed by the appellant after creation of the State of Uttranchal (renamed as Uttrakhand) by the Uttar Pradesh Reorganisation Act, 2000 (for short "the Reorganisation Act"). 3. One Sanjay Ghai had purchased bhumidhari land from various tenure holders in the name of Golden Forest India Limited and its sister concerns, namely, Indian Peace Foundation Trust, Mani Majra, Chandigarh, Golden Forest India Limited, Golden Agro Forest Limited and Golden Forest Distributors Limited. Tehsildar, Dehradun, submitted report dated 12.08.1997 to Assistant Collector 1st Class-cum-Sub Divisional Magistrate (for short "the Assistant Collector") with the finding that the purchases made in the name of the respondents were violative of the restriction contained in Section 154 (1) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short "the Act"). He suggested that action may be initiated against them under Sections 166/167 of the Act and land in excess of the ceiling may be declared to have vested in the State Government. The Assistant Collector issued notice to the respondents, gave them opportunity of hearing and passed order dated 21.08.1997 whereby he held that the disputed transactions were ultra vires the provisions contained in Section 154(1) of the Act and forwarded the matter to Collector, Dehradun for taking action under Section 167(2) of the Act.4. The respondents challenged the aforesaid order by filing revisions, which were allowed by the Board of Revenue, U.P. vide order dated 24.11.2000 by observing that in terms of Section 154(1) of the Act each major person or company is entitled to purchase 12.5 acres land and the purchases made in the names of different companies cannot be clubbed for deciding the issue relating to violation of that section.5. The State of Uttar Pradesh challenged the order of the Board of Revenue in Writ Petition No. 81 (M/S) of 2000. The State of Uttranchal also challenged that order in Writ Petition Nos. 2046 (M/S) -2049(M/S) and 2051(M/S) - 2053(M/S) of 2001 on several grounds including the one that after coming into force of the Reorganisation Act, the Board of Revenue, U.P. did not have the jurisdiction to deal with and decide the revisions filed by the respondents.6. The Learned Single Judge did not deal with the issue of jurisdiction and dismissed the writ petitions by observing that the conclusion recorded by the Board of Revenue, U.P. on the legality of the disputed transaction was correct.7. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant argued that in view of Section 91 of the Reorganisation Act, the proceedings pending before the Board of Revenue, U.P. stood transferred to the newly created State of Uttranchal and, as such, it did not have the jurisdiction to decide the revisions filed by the respondents. Learned senior counsel pointed out that the Reorganisation Act had come into force w.e.f. 09.11.2000 and, therefore, the Board of Revenue, U.P. could not have decided the revisions on 24.11.2000.8. Shri Vijay Hansaria, learned senior counsel appearing for the respondents argued that the appellant cannot question the orders passed by the Board of Revenue, U.P. on the ground of lack of jurisdiction because no such objection was raised at the hearing of the revision petitions. Learned senior counsel further argued that this Court may not interfere with the impugned order because the land purchased in the names of the respondents had already been divided into plots and allotted to various persons, who are not parties in these cases. 9. We have considered the respective submissions. Section 91 of the Reorganisation Act reads thus: "91. Transfer of pending proceedings.--(1) Every proceeding pending immediately before the appointed day before a court (other than High Court), tribunal, authority or officer in any area which on that day falls within the State of Uttar Pradesh shall, if it is a proceeding relating exclusively to the territory, which as from that day are the territories of Uttaranchal State, stand transferred to the corresponding court, tribunal, authority or officer of that State.(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1) it shall be referred to the High Court at Allahabad and the decision of that High Court shall be final.(3) In this section--(a)"proceeding" includes any suit, case or appeal; and(b)"corresponding court, tribunal, authority or officer" in the State of Uttaranchal means—(i) the court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day; or(ii) in case of doubt, such court, tribunal, authority, or officer in that State, as may be determined after the appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of Uttar Pradesh to be the corresponding court, tribunal, authority or officer." 10. A reading of the plain language of the above reproduced provision makes it clear that every proceeding pending before a Court, Tribunal, Authority or Officer in any area which fell within the State of U.P. on 09.11.2000 stood automatically transferred to the corresponding Court, Tribunal, Authority or Officer of the State of Uttranchal (now Uttrakhand). Therefore, the revisions which were pending before the Board of Revenue, U.P. on 9.11.2000 stood transferred to the State of Uttranchal and, as such, the same could not have been decided by the Board of Revenue, U.P. Unfortunately, the learned Single Judge over looked the fatal flaw in the order of the Board of Revenue, U.P. and pronounced upon the legality of the purchases made in the names of the respondents.
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10. A reading of the plain language of the above reproduced provision makes it clear that every proceeding pending before a Court, Tribunal, Authority or Officer in any area which fell within the State of U.P. on 09.11.2000 stood automatically transferred to the corresponding Court, Tribunal, Authority or Officer of the State of Uttranchal (now Uttrakhand). Therefore, the revisions which were pending before the Board of Revenue, U.P. on 9.11.2000 stood transferred to the State of Uttranchal and, as such, the same could not have been decided by the Board of Revenue, U.P. Unfortunately, the learned Single Judge over looked the fatal flaw in the order of the Board of Revenue, U.P. and pronounced upon the legality of the purchases made in the names of the respondents.
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CHINTELS INDIA LTD Vs. BHAYANA BUILDERS PVT. LTD | as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act. 32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held: 1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under: 17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act. 2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law. 3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference. 33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled. 34. Shri Rohatgi referred to the Statement of Objects and Reasons of the Arbitration Act, 1996 and in particular clause 4(v), which reads as follows: 4. Main objects of the Bill are as under: xxx xxx xxx (v) to minimise the supervisory role of courts in the arbitral process; 35. Shri Rohatgi then read section 5 of the Arbitration Act, 1996 to us. According to him, in furtherance of this object, section 37 was enacted giving a limited right of appeal. He argued that an appeal, being a creature of statute should not, therefore, be enlarged beyond what is provided by the Legislature. Section 5 of the Arbitration and Conciliation Act reads as follows: 5. Extent of judicial intervention.—Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand. 37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award. | 1[ds]8. A reading of section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned – see State of Himachal Pradesh v. Himachal Techno Engineers and Anr. (2010) 12 SCC 210 at paragraph 5.It is important to note that the expression setting aside or refusing to set aside an arbitral award does not stand by itself. The expression has to be read with the expression that follows - under section 34. Section 34 is not limited to grounds being made out under section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under section 37(2)(a), an appeal lies when a plea referred to in sub-section (2) or (3) of section 16 is accepted. This would show that the Legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of section 37(1)(c), where the expression under section 34 refers to the entire section and not to section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under section 34(3) gets further strengthened.10. In Essar Constructions (supra), a judgment rendered under section 39 of the 1940 Act, this Court was faced with the same question as is raised in the appeal before us.11. The question which the Court was required to answer was set out as follows:5. But was the Civil Judges order dismissing the respondents application under Section 5 at all revisable under Section 115 of the Code or did an appeal lie from it under Section 39 of the Arbitration Act, 1940? The answer is of moment as the powers of an appellate court are wider than those available under Section 115. Section 39(1)(vi) of the Arbitration Act, 1940 says that an appeal shall lie inter alia from an order refusing to set aside an award.6. To arrive at a conclusion as to whether the order passed by the Senior Civil Judge, Kakinada was an order refusing to set aside the award, we have to consider the facts.12. After setting out the order of the Senior Civil Judge, who refused to condone delay in filing an application for setting aside the award, the Court then held:11. The outcome of the order in effect was that the prayer for setting aside the award was refused on the ground of delay.12. The effect test was applied by the High Court of Andhra Pradesh in Babumiyan & Mastan v. K. Seethayamma [AIR 1985 AP 135] which said:In the light of the rulings in G. Gopalaswami v. G. Navalgaria [AIR 1967 Mad 403 ] and the decision of the Bench in CMA No. 612 of 1977 dated 3-4-1978, the legal position may be enunciated as follows: The order refusing to condone the delay in filing the claim petition has the effect of finally disposing of the original petition. Such an order can, therefore, be treated as an award and hence it is appealable.13. Again a Division Bench of the Assam High Court in Mafizuddin Bhuyan v. Alimuddin Bhuyan [AIR 1950 Ass 191] has said:Whether objections to an award are dismissed on the merits or they are dismissed on the ground that they are filed beyond time, the Court by dismissing them in effect refuses to set aside the award, and an order refusing to set aside an award is clearly appealable under Section 39.14. In some High Courts, no separate application is filed under Section 5 of the Limitation Act and the prayer for condonation of delay is included along with the prayers made for substantive relief. Courts have entertained appeals from an order dismissing an application on the ground of limitation. Thus, in State of W.B. v. A. Mondal [AIR 1985 Cal 12 (DB)] where an application under Section 30 of the Arbitration Act was dismissed on the ground of limitation, an appeal was entertained. (See also Damodaran v. Bhaskaran [(1988) 2 KLT 753].)15. The procedure appears to have been approved by the Supreme Court in the case of Union of India v. Union Builders [AIR 1985 Cal 337 (DB)] where on an appeal to the Supreme Court from an order dismissing an application under Section 30 on the ground of delay, the appeal was remanded to the High Court to be disposed of.16. The position should be no different in courts where a separate application under Section 5 of the Limitation Act is required to be filed. If the various High Courts decisions noted earlier are correct, then the application under Section 5 being dismissed, the application under Section 30 would consequently also have to be dismissed although this might be a mere formality. The end result would be the same.xxx xxx xxx21. Section 39(1)(vi) of the Arbitration Act, 1940 does not indicate the grounds on which the court may refuse to set aside the award. There is nothing in its language to exclude a refusal to set aside the award because the application to set aside the award is barred by limitation. By dismissing the application albeit under Section 5, the assailability of the award is concluded as far as the court rejecting the application is concerned. Ultimately therefore, it is an order passed under Section 30 of the Arbitration Act though by applying the provisions of the Limitation Act.13. The Court ultimately concluded:25. Reading Section 39(1)(vi) and Section 17 together, it would therefore follow that an application to set aside an award which is rejected on the ground that it is delayed and that no sufficient cause has been made out under Section 5 of the Limitation Act would be an appealable order.14. It will be noticed that so far as the present question is involved, section 39(1)(vi) of the 1940 Act is in pari materia to section 37(1)(c) of the Arbitration Act, 1996.14. It will be noticed that so far as the present question is involved, section 39(1)(vi) of the 1940 Act is in pari materia to section 37(1)(c) of the Arbitration Act, 1996.This was in fact held in two of the judgments of this Court. In Chief Engineer of BPDP/REO Ranchi (supra), this Court when considering a similar question held as follows:5. Section 37(1)(b) of the Act is in pari materia with Section 39(1)(vi) of the Arbitration Act, 1940 (in short the old Act). The provisions in the Acts read as follows:37. (1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order, namely—(b) setting aside or refusing to set aside an arbitral award under Section 34.39. Appealable orders.—(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order:(vi) setting aside or refusing to set aside an award:15. Having so held, this Court then referred to and followed the judgment in Essar Constructions (supra) and the judgment contained in Union of India v. Manager, Jain and Associates (2001) 3 SCC 277 , ultimately holding:8. The decision in Popular Construction case [(2001) 8 SCC 470] did not deal with specific issues in this case. In that decision it was held that in respect of sufficient cause cases the provisions of Section 34(3) of the Act which are special provisions relating to condonation of delay override the general provisions of Section 5 of the Limitation Act, 1963 (in short the Limitation Act). The position was reiterated in the Western Builders case [(2006) 6 SCC 239] and also in Fairgrowth Investments Ltd. v. Custodian [(2004) 11 SCC 472] . There can be no quarrel with the proposition that Section 5 of the Limitation Act providing for condonation of delay is excluded by Section 34(3) of the Act.9. But the question in the instant case is not about the applicability of Section 5 of the Limitation Act, and the question really is whether the appeal was maintainable. The High Court did not consider this aspect. The appeal is clearly maintainable. Therefore, the order of the High Court is set aside. The High Court shall deal with the matter and examine the respective stand on merits treating the appeal to be maintainable.16. Likewise, in Fuerst Day Lawson Ltd. (supra) this Court held:37. These general principles are culled out from the decisions of this Court rendered under Section 104 CPC and various other Acts, as noted above. But there is another set of decisions of this Court on the question under consideration rendered in the context of Section 39 of the 1940 Act. Section 39 of the erstwhile Act contained the provision of appeal and provided as follows:39.Appealable orders.—(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decree of the court passing the orders:(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award:Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.(Insofar as relevant for the present, Section 37 of the 1996 Act, is very similar to Section 39 of the previous Act as quoted above.)17. It then referred to an argument of counsel that there would be no material difference between the provisions of section 39 of Arbitration Act, 1940 and section 37 of the Arbitration Act, 1996 vis-à-vis section 50 of the 1996 Act, as follows:43. Mr Dave, in reply submitted that the words (and from no others) occurring in Section 39 of the 1940 Act and Section 37 of the 1996 Act were actually superfluous and seen, thus, there would be no material difference between the provisions of Section 39 of the 1940 Act or Section 37 of the 1996 Act and Section 50 of the 1996 Act and all the decisions rendered on Section 39 of the 1940 Act will apply with full force to cases arising under Section 50 of the 1996 Act.18. So far as section 37 of the Arbitration Act, 1996 and section 39 of the Arbitration Act, 1940 were concerned, this Court agreed with counsels argument, but disagreed with the submission insofar as section 50 of the 1996 Act was concerned, as follows:52. Having regard to the grammatical use of brackets or parentheses, if the words (and from no others) occurring in Section 39 of the 1940 Act or Section 37 of the 1996 Act are viewed as an explanation or afterthought or extra information separate from the main context, then, there may be some substance in Mr Daves submission that the words in parenthesis are surplusage and in essence the provisions of Section 39 of the 1940 Act or Section 37 of the 1996 Act are the same as Section 50 of the 1996 Act. Section 39 of the 1940 Act says no more and no less than what is stipulated in Section 50 of the 1996 Act. But there may be a different reason to contend that Section 39 of the 1940 Act or its equivalent Section 37 of the 1996 Act are fundamentally different from Section 50 of the 1996 Act and hence, the decisions rendered under Section 39 of the 1940 Act may not have any application to the facts arising under Section 50 of the 1996 Act. But for that we need to take a look at the basic scheme of the 1996 Act and its relevant provisions.19. The reasoning in Essar Constructions (supra) commends itself to us, being on a pari materia provision to that contained in section 37(1)(c) of the Arbitration Act, 1996. We may only add that the reasoning of the aforesaid judgment is further strengthened by our analysis of the additional words under section 34 which occur in section 37(1)(c), and which are absent in section 39(1)(vi) [the pari materia provision to section 34 of the Arbitration Act, 1996 being section 30 of the Arbitration Act, 1940].20. In point of fact, the effect doctrine referred to in Essar Constructions (supra) is statutorily inbuilt in section 37 of the Arbitration Act, 1996 itself.So far as section 37(1)(a) is concerned, where a party is referred to arbitration under section 8, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the learned Arbitrator to decide preliminary points under section 16 of the Act, which then become the subject matter of appeal under section 37(2)(a) or the subject matter of grounds to set aside under section 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator. It is also important to note that an order refusing to refer parties to arbitration under section 8 may be made on a prima facie finding that no valid arbitration agreement exists, or on the ground that the original arbitration agreement, or a duly certified copy thereof is not annexed to the application under section 8. In either case, i.e. whether the preliminary ground for moving the court under section 8 is not made out either by not annexing the original arbitration agreement, or a duly certified copy, or on merits – the court finding that prima facie no valid agreement exists – an appeal lies under section 37(1)(a).21. Likewise, under section 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end. However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to carry on, and the aforesaid decision on the preliminary ground is amenable to challenge under section 34 after the award is made, no appeal is provided. This is made clear by section 16(5) and (6) of the Arbitration Act, 199622. Given the fact that the effect doctrine is part and parcel of the statutory provision for appeal under section 37, and the express language of section 37(1)(c), it is difficult to accede to the argument of Shri Rohatgi.23. We now come to the judgment in Simplex Infrastructures Ltd. (supra). In this judgment, what was argued before this Court is set out with reference to the Division Bench judgment under appeal as follows:11. The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in Tanusree Art Printers [Tanusree Art Printers v. Rabindra Nath Pal, 2000 SCC OnLine Cal 217] being of a Special Bench of three Judges of the same court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 ] — which is directly on the point and was pressed into service by the appellant. Neither the Division Bench of the High Court of Calcutta which dealt with Modi Korea Telecommunication Ltd. [Modi Korea Telecommunication Ltd. v. Appcon Consultants (P) Ltd., 1999 SCC OnLine Cal 19] nor the three-Judge Bench which decided Tanusree Art Printers, had the benefit of the judgment of this Court in Fuerst Day Lawson Ltd., which is later in time.24. In stating that the Division Bench was wrong, as a judgment of a single Judge condoning delay in the filing of a petition under section 34 cannot be said to be without jurisdiction, the Court then held:12… On a bare reading of this provision, it is noticed that the remedy of the appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34. No appeal is provided against an order passed by the court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act.13. In our opinion, the issue is squarely answered against the respondent by the decision of this Court in Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 ] In that, the judgment of the learned Single Judge dated 27-4-2016 [Union of India v. Simplex Infrastructures Ltd., 2016 SCC OnLine Cal 12045], was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of letters patent appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the respondent before this Court by way of special leave petition. But, certainly not by way of a letters patent appeal under Clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court.25. This judgment does not in any manner militate against what has been held by us. In answer to the question as to whether a single Judges judgment condoning delay in filing an application under section 34 was without jurisdiction, this Court correctly held that such an order is in exercise of jurisdiction conferred by the statute. This judgment therefore cannot be said to be an authority for the proposition that, as the converse position to the facts contained in the present appeal before us has been held to be not appealable, it must follow that even where delay is not condoned, the same position obtains. This would fly in the face of the reasoning contained in this judgment, as well as the reasoning contained in Essar Constructions (supra), which has commended itself to us.26. We now come to this Courts judgment in BGS SGS Soma (supra). As correctly pointed out by Shri Rao, the question before this Court in BGS SGS Soma (supra) was a completely different one, being set out in paragraph 1 of the judgment as follows:1. Leave granted. Three appeals before us raise questions as to maintainability of appeals under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act, 1996), and, given the arbitration clause in these proceedings, whether the seat of the arbitration proceedings is New Delhi or Faridabad, consequent upon which a petition under Section 34 of the Arbitration Act, 1996 may be filed dependent on where the seat of arbitration is located.27. In answering this question, the Court first went into the interplay between section 37 of the Arbitration Act, 1996 and section 13 of the Commercial Courts Act, 2015, holding that section 37 of the Arbitration Act alone provides grounds for appeal, section 13(1) of the Commercial Courts Act providing the procedure thereof. In the course of discussion, this Court then referred to a judgment of the Delhi High Court as follows:16. Shri Chowdhury also referred to another Delhi High Court judgment reported as Harmanprit Singh Sidhu v. Arcadia Shares & Stock Brokers (P) Ltd. [(2016) 234 DLT 30], in which a learned Single Judge of the Delhi High Court allowed an application for condonation of delay in filing a Section 34 petition. The Division Bench, in holding that an appeal against such an order would not be maintainable under Section 37 of the Arbitration Act, 1996, read with the Commercial Courts Act, 2015 held:10. Coming to Section 37(1), it is evident that an appeal can lie from only the orders specified in clauses (a), (b) or (c). In other words, an appeal under Section 37 would only be maintainable against (a) an order refusing to refer the parties to arbitration under Section 8 of the A&C Act; (b) an order granting or refusing to grant any measure under Section 9 of the A&C Act; or (c) an order setting aside or refusing to set aside an arbitral award under Section 34 of the A&C Act. The impugned order [Arcadia Shares & Stock Brokers (P) Ltd. v. Harmanprit Singh Sidhu, 2016 SCC OnLine Del 6625] is clearly not relatable to Section 8 or 9 of the A&C Act. It was sought to be contended by the learned counsel for the appellant that the present appeal would fall within Section 37(1)(c) which relates to an order setting aside or refusing to set aside an arbitral award under Section 34. We are unable to accept this proposition. By virtue of the impugned order, the arbitral award dated 10-9-2013 has not been set aside. Nor has the court, at this stage, refused to set aside the said arbitral award under Section 34 of the A&C Act. In fact, the appellant in whose favour the award has been made, would only be aggrieved if the award were to have been set aside in whole or in part. That has not happened. What the learned single Judge has done is to have condoned the delay in re-filing of the petition under Section 34. This has not, in any way, impacted the award.17. The reasoning in this judgment in Harmanprit Singh Sidhu commends itself to us, as a distinction is made between judgments which either set aside, or refuse to set aside, an arbitral award after the court applies its mind to Section 34 of the Arbitration Act, 1996, as against preliminary orders of condonation of delay, which do not in any way impact the arbitral award that has been assailed.28. It is well settled that judgments are not to be construed like Euclids theorems (see Amar Nath Om Prakash v. State of Punjab (1985) 1 SCC 345 ), but all observations made therein must relate to the context in which they were made. In that case, the Court put it thus:10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P [(1983) 4 SCC 353] with which we must express our agreement, it was said:With utmost respect, these observations of the learned Judge are not to be read as Euclids theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.In London Graving Dock Co. Ltd. v. Horton [1951 AC 737, 761] Lord MacDermott observed:The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....In Home Office v. Dorset Yacht Co. Ltd. [(1970) 2 All ER 294] Lord Reid said:Lord Atkins speech [Donoghue v. Stevension, 1932 All ER Rep 1, 11] ... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances.Megarry, J. in (1971) 1 WLR 1062 observed:One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.And, in Herrington v. British Railways Board [1972 AC 877 (HL)] Lord Morris said:There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.11. There are a few other observations in Kewal Krishan Puri case [(1980) 1 SCC 416] to which apply with the same force all that we have said above. It is needless to repeat the oft-quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it.29. The context in which paragraph 17 of BGS SGS Soma (supra) was made, was a context in which an application under section 34 would have to be returned to the Court which had jurisdiction to decide a section 34 application, dependent upon where the seat of the arbitral tribunal was located. In this context, it was held that a mere preliminary step, which did not lead to the application being rejected finally, cannot be characterised as an order which would result in the applications fate being sealed once and for all. The Courts focus was not on the language of section 37(1)(c), nor were any arguments addressed as to its correct interpretation. As a matter of fact, Harmanprit Singh Sidhu (supra) itself went on to hold:13. In sum, the impugned order does not fall within the category of appealable orders specified in Section 37(1) of the A&C Act. Therefore, even if the provisions of Section 37(1) are read with Section 13 of the Commercial Courts Act, the present appeal is not maintainable. This, however, does not mean that the appellant cannot take up the ground that is sought to be urged before us if the decision in OMP 294/2014 (under Section 34 of the A&C Act) goes against him. In other words, if the arbitral award is set aside in part or in whole and the appellant is aggrieved thereby, he may prefer an appeal under Section 37 of the A&C Act on merits as also on the ground that the delay in re-filing ought not to have been condoned. This is in line with the scheme of the A&C Act of not, in any way, stalling the proceedings thereunder. For example, under Section 13(4) of the A&C Act, if a challenge to an arbitrator is not successful, the arbitral tribunal is required to continue the arbitral proceedings and make an arbitral award and, in such an instance, as provided in Section 13(5) of the A&C Act, the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with Section 34. In other words, recourse to a remedy for an unsuccessful challenge to an arbitrator is deferred till the stage of the making of the award. Similarly, under Section 16, an arbitral tribunal may rule on its jurisdiction. In a case where the arbitral tribunal rejects a plea with regard to its jurisdiction, it is enjoined by Section 16(5) of the A&C Act to continue with the arbitral proceedings and to make the arbitral award. Section 16(6) stipulates that a party aggrieved by such an arbitral award may make an application for setting aside the award in accordance with Section 34. Here, too, the unsuccessful party, who challenges the jurisdiction of an arbitral tribunal, is asked to wait till the award is made. The remedy of questioning the decision of the arbitral tribunal with regard to the arbitrators jurisdiction in such a case is not extinguished but is merely deferred till the making of the arbitral award. In similar vein, in the present case, the remedy of challenging the decision of condoning the delay in re-filing is not extinguished but is deferred till the final decision of the court on the pending Section 34 petition.30. Obviously therefore, an observation of this Court torn out of its context cannot be said to conclude the issue that is now before us.31. We now come to the sheet anchor of Shri Rohatgis case, namely, Ramdas Construction Co. (supra). In this judgment, a Division Bench of the Bombay High Court held:9. Sub-section (3) of section 34 of the Act provides that an application for setting aside may be made after three months have elapsed from the date on which the party making such application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal, provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter. This provision of law expressly reveals that the legislature has provided a specific period of limitation for filing an application for setting aside of the award and simultaneously the Court has been given discretion to extend such period only by thirty days, and not beyond the said period of thirty days. The provision is very clear in that regard. However, the scope of enquiry under sub-section(3) is restricted to the cause for delay in filing the application but it does not relate to the merits of the application for setting aside of the award. Being so, an order which is to be passed in exercise of powers under sub-section (3) of section 34 of the Act cannot extend to the subject matter of the application for setting aside of the award but has to restrict to the aspect of delay in filing such application only. Such an order is not contemplated to be an appealable order within the meaning of the said expression under section 37 of the Act. It is very clear from the fact that section 37 refers to the orders dealing with the aspect of setting aside or refusing to set aside an arbitral award. It does not refer to the proceedings preceding the enquiry in relation to the issue of setting aside or refusing to set aside an arbitral award. The subject-matter of delay in filing an application and the condonation thereof relates to the proceedings preceding the enquiry for setting aside or refusing to set aside an arbitral award. Once it is clear that section 37(1)(b) does not contemplate any order passed in such proceeding relating to the matter preceding the enquiry in relation to setting aside or refusing to set aside an arbitral award, such an order cannot be considered as an appealable order within the meaning of the said expression under section 37 of the Act.10. Undoubtedly the impugned order while rejecting the application for condonation of delay, clearly observes:Consequently, application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award is also rejected being barred by time.In other words, the Court has not dealt with the application for setting aside of the award on merits and the same has been disposed of solely as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act.32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held:1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under:17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act.2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law.3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference.33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled.36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of thisCourt to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand.37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award. | 1 | 11,047 | 7,291 | ### Instruction:
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as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act. 32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held: 1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under: 17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act. 2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law. 3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference. 33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled. 34. Shri Rohatgi referred to the Statement of Objects and Reasons of the Arbitration Act, 1996 and in particular clause 4(v), which reads as follows: 4. Main objects of the Bill are as under: xxx xxx xxx (v) to minimise the supervisory role of courts in the arbitral process; 35. Shri Rohatgi then read section 5 of the Arbitration Act, 1996 to us. According to him, in furtherance of this object, section 37 was enacted giving a limited right of appeal. He argued that an appeal, being a creature of statute should not, therefore, be enlarged beyond what is provided by the Legislature. Section 5 of the Arbitration and Conciliation Act reads as follows: 5. Extent of judicial intervention.—Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand. 37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.
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set aside an arbitral award. The subject-matter of delay in filing an application and the condonation thereof relates to the proceedings preceding the enquiry for setting aside or refusing to set aside an arbitral award. Once it is clear that section 37(1)(b) does not contemplate any order passed in such proceeding relating to the matter preceding the enquiry in relation to setting aside or refusing to set aside an arbitral award, such an order cannot be considered as an appealable order within the meaning of the said expression under section 37 of the Act.10. Undoubtedly the impugned order while rejecting the application for condonation of delay, clearly observes:Consequently, application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award is also rejected being barred by time.In other words, the Court has not dealt with the application for setting aside of the award on merits and the same has been disposed of solely as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act.32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held:1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under:17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act.2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law.3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference.33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled.36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of thisCourt to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand.37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.
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State Of U.P. And Anr Vs. Annapurna Biscuit Mfg. Co | the deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. As the said amount does not constitute sales-tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which relates to taxes on sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I.4. The argument that provision like Section 29A is ancillary or incidental to the Collection of tax legitimately due under a law made under entry 54 has no force. Such an argument was rejected by this Court in Abdul Quaders case, (1964) 15 STC 403 = (AIR 1964 SC 922 ) (supra) in the following words:"The provision however is attempted to be justified on the ground that though it may not be open to State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of list II in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax. as part of the incidental and ancillary power to make provision for the levy and collection of such tax.......But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry."The above observations were quoted with approval by a six-judge Bench of this Court in the case of Ashoka Marketing Ltd. v. State of Bihar, (1970) 26 STC 254 =(AIR 1971 SC 946). In that case the provisions of S. 20A of the Bihar Sales-tax Act which were substantially similar to those of S. 29-A now impugned before us were assailed. Shah J. (as he then was) speaking for the Court observed:"A provision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax. But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied- that an equal amount is payable by him under the Bihar Sales-tax Act, is a provision incidental to the power to levy tax on sale or purchase of goods within the meaning of Entry 54 List II of the Seventh Schedule Entry 54. List II of the Seventh schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity of the officers. The State legislature may under entry 54, List II be competent to enact a law in respect of matters necessarily incidental to tax on the sale and purchase of goods. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to Entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to collect."In view of the above decision, the contention that the impugned Act would be covered by entry 54 in list II can plainly be not accepted.5. Argument has been advanced before us on behalf of the appellant that the impugned law would be covered by entry 7 in List III which relates, inter alia, to contracts. A similar argument was advanced in the case of Ashoka Marketing Ltd. (1970) 26 STC 254 = (AIR 1971 SC 946) (supra) and was rejected in the following words :"We fail to appreciate how power to legislate in respect of entries 6, 7 and 13 would authorise the State Legislature to legislate in respect of recovery from the dealer of an amount which the dealer was in law not entitled to collect, but which he has collected. The power to legislate in respect of sub-sections (3), (4) and (5) of Section 20A does not fall under entries 6, 7 and 13 of List III expressly, nor can it be said that the power to legislate is necessarily incidental to the power contained in entries 6, 7 and 13 of List III."6. Lastly, it has been argued that the law in question relates to trust and can be justified under entry 10 in List III. We, however, fail to see as to how such a law can be said to relate to trusts. A trust is an obligation annexed to the ownership of property and arises out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner (see Section 3 of the Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales-tax cannot in pith and substance be considered to be a law relating to trusts. The mere use of the word "trust" in sub-section (2) of Section 29-A would not make the impugned law to be one relating to trusts. | 0[ds]Section 29-A deals with the amount wrongly realised by a dealer on sale of goods to any person. Sub-section (1) of Section 29-A of the principal Act makes it obligatory on the part of the dealer to deposit such amount into the Government Treasury "notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act. Sub-section (2) provides that the amount so deposited by a dealer shall to the extent it is not due as tax from him be held by the State Government in trust for the person from whom it was realised by the dealer or for his legal representatives. It further provides that when a dealer has deposited the amount into the Treasury, he shall no longer be liable to the person from whom he has realised the amount. According to sub-section (3) of the section, the amount deposited into the Government Treasury by the dealer or any part thereof shall, on a claim being made in that behalf in such manner and form as may be prescribed, be refunded to the person from whom the dealer had actually realised the amount or part, or to his legal representatives. Section 29-A thus seeks to ensure the deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. As the said amount does not constitute sales-tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which relates to taxes on sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I.4. The argument that provision like Section 29A is ancillary or incidental to the Collection of tax legitimately due under a law made under entry 54 has noan argument was rejected by this Court in Abdul Quaders case, (1964) 15 STC 403 = (AIR 1964 SC 922 ) (supra) in the followingprovision however is attempted to be justified on the ground that though it may not be open to State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of list II in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax. as part of the incidental and ancillary power to make provision for the levy and collection of such tax.......But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxingabove observations were quoted with approval by a six-judge Bench of this Court in the case of Ashoka Marketing Ltd. v. State of Bihar, (1970) 26 STC 254 =(AIR 1971 SC 946). In that case the provisions of S. 20A of the Bihar Sales-tax Act which were substantially similar to those of S. 29-A now impugned before us were assailed. Shah J. (as he then was) speaking for the Courtprovision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax. But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied- that an equal amount is payable by him under the Bihar Sales-tax Act, is a provision incidental to the power to levy tax on sale or purchase of goods within the meaning of Entry 54 List II of the Seventh Schedule Entry 54. List II of the Seventh schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity of the officers. The State legislature may under entry 54, List II be competent to enact a law in respect of matters necessarily incidental to tax on the sale and purchase of goods. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to Entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled toview of the above decision, the contention that the impugned Act would be covered by entry 54 in list II can plainly be nothowever, fail to see as to how such a law can be said to relate to trusts. A trust is an obligation annexed to the ownership of property and arises out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner (see Section 3 of the Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales-tax cannot in pith and substance be considered to be a law relating to trusts. The mere use of the word "trust" in sub-section (2) of Section 29-A would not make the impugned law to be one relating to trusts. | 0 | 2,617 | 1,100 | ### 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 deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. As the said amount does not constitute sales-tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which relates to taxes on sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I.4. The argument that provision like Section 29A is ancillary or incidental to the Collection of tax legitimately due under a law made under entry 54 has no force. Such an argument was rejected by this Court in Abdul Quaders case, (1964) 15 STC 403 = (AIR 1964 SC 922 ) (supra) in the following words:"The provision however is attempted to be justified on the ground that though it may not be open to State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of list II in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax. as part of the incidental and ancillary power to make provision for the levy and collection of such tax.......But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry."The above observations were quoted with approval by a six-judge Bench of this Court in the case of Ashoka Marketing Ltd. v. State of Bihar, (1970) 26 STC 254 =(AIR 1971 SC 946). In that case the provisions of S. 20A of the Bihar Sales-tax Act which were substantially similar to those of S. 29-A now impugned before us were assailed. Shah J. (as he then was) speaking for the Court observed:"A provision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax. But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied- that an equal amount is payable by him under the Bihar Sales-tax Act, is a provision incidental to the power to levy tax on sale or purchase of goods within the meaning of Entry 54 List II of the Seventh Schedule Entry 54. List II of the Seventh schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity of the officers. The State legislature may under entry 54, List II be competent to enact a law in respect of matters necessarily incidental to tax on the sale and purchase of goods. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to Entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to collect."In view of the above decision, the contention that the impugned Act would be covered by entry 54 in list II can plainly be not accepted.5. Argument has been advanced before us on behalf of the appellant that the impugned law would be covered by entry 7 in List III which relates, inter alia, to contracts. A similar argument was advanced in the case of Ashoka Marketing Ltd. (1970) 26 STC 254 = (AIR 1971 SC 946) (supra) and was rejected in the following words :"We fail to appreciate how power to legislate in respect of entries 6, 7 and 13 would authorise the State Legislature to legislate in respect of recovery from the dealer of an amount which the dealer was in law not entitled to collect, but which he has collected. The power to legislate in respect of sub-sections (3), (4) and (5) of Section 20A does not fall under entries 6, 7 and 13 of List III expressly, nor can it be said that the power to legislate is necessarily incidental to the power contained in entries 6, 7 and 13 of List III."6. Lastly, it has been argued that the law in question relates to trust and can be justified under entry 10 in List III. We, however, fail to see as to how such a law can be said to relate to trusts. A trust is an obligation annexed to the ownership of property and arises out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner (see Section 3 of the Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales-tax cannot in pith and substance be considered to be a law relating to trusts. The mere use of the word "trust" in sub-section (2) of Section 29-A would not make the impugned law to be one relating to trusts.
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### Explanation:
29-A of the principal Act makes it obligatory on the part of the dealer to deposit such amount into the Government Treasury "notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act. Sub-section (2) provides that the amount so deposited by a dealer shall to the extent it is not due as tax from him be held by the State Government in trust for the person from whom it was realised by the dealer or for his legal representatives. It further provides that when a dealer has deposited the amount into the Treasury, he shall no longer be liable to the person from whom he has realised the amount. According to sub-section (3) of the section, the amount deposited into the Government Treasury by the dealer or any part thereof shall, on a claim being made in that behalf in such manner and form as may be prescribed, be refunded to the person from whom the dealer had actually realised the amount or part, or to his legal representatives. Section 29-A thus seeks to ensure the deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. As the said amount does not constitute sales-tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which relates to taxes on sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I.4. The argument that provision like Section 29A is ancillary or incidental to the Collection of tax legitimately due under a law made under entry 54 has noan argument was rejected by this Court in Abdul Quaders case, (1964) 15 STC 403 = (AIR 1964 SC 922 ) (supra) in the followingprovision however is attempted to be justified on the ground that though it may not be open to State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of list II in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax. as part of the incidental and ancillary power to make provision for the levy and collection of such tax.......But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxingabove observations were quoted with approval by a six-judge Bench of this Court in the case of Ashoka Marketing Ltd. v. State of Bihar, (1970) 26 STC 254 =(AIR 1971 SC 946). In that case the provisions of S. 20A of the Bihar Sales-tax Act which were substantially similar to those of S. 29-A now impugned before us were assailed. Shah J. (as he then was) speaking for the Courtprovision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax. But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied- that an equal amount is payable by him under the Bihar Sales-tax Act, is a provision incidental to the power to levy tax on sale or purchase of goods within the meaning of Entry 54 List II of the Seventh Schedule Entry 54. List II of the Seventh schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity of the officers. The State legislature may under entry 54, List II be competent to enact a law in respect of matters necessarily incidental to tax on the sale and purchase of goods. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to Entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled toview of the above decision, the contention that the impugned Act would be covered by entry 54 in list II can plainly be nothowever, fail to see as to how such a law can be said to relate to trusts. A trust is an obligation annexed to the ownership of property and arises out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner (see Section 3 of the Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales-tax cannot in pith and substance be considered to be a law relating to trusts. The mere use of the word "trust" in sub-section (2) of Section 29-A would not make the impugned law to be one relating to trusts.
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Union Of India Vs. M/S. Simplex Infrastructures Ltd | same is a self-contained code relating to arbitration." 89.It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self- contained code. Now, if the Arbitration Act, 1940 was held to be a self- contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it "a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded."10. After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCC 524 11. The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time. 12. The Act as applicable to the present case, provides for a remedy of appeal in terms of Section 37 of the Act. The same reads thus:-"37. Appealable orders. - (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely:- [(a) Refusing to refer the parties to arbitration under section 8; (b) granting or refusing to grant any measure under section 9; (c) setting aside or refusing to set aside an arbitral award under section 34.] (2) An appeal shall also lie to a Court from an order of the arbitral tribunal- (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."13. On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act. 14. In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court. 15. The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so advised. | 1[ds]9. After hearing the counsel for the parties and going through the decisions relied upon by both sides, we have no hesitation in allowing this appeal.After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCCThe Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time.On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act.In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court.The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so | 1 | 3,113 | 732 | ### 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 is a self-contained code relating to arbitration." 89.It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self- contained code. Now, if the Arbitration Act, 1940 was held to be a self- contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it "a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded."10. After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCC 524 11. The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time. 12. The Act as applicable to the present case, provides for a remedy of appeal in terms of Section 37 of the Act. The same reads thus:-"37. Appealable orders. - (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely:- [(a) Refusing to refer the parties to arbitration under section 8; (b) granting or refusing to grant any measure under section 9; (c) setting aside or refusing to set aside an arbitral award under section 34.] (2) An appeal shall also lie to a Court from an order of the arbitral tribunal- (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."13. On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act. 14. In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court. 15. The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so advised.
### Response:
1
### Explanation:
9. After hearing the counsel for the parties and going through the decisions relied upon by both sides, we have no hesitation in allowing this appeal.After this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd & Anr.(2016) 9 SCCThe Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in M/s. Tanusree Art Printers & Anr. (supra) being of a special bench of three-Judges of the same Court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited (supra) - which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. (supra) nor the three-Judges Bench which decided the case of M/s. Tanusree Art Printers & Anr.(supra), had the benefit of the judgment of this Court in Fuerst Day Lawson Limited (supra), which is later in time.On a bare reading of this provision, it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1) (c). No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned Judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act.In our opinion, the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the Respondent before this Court by way of special leave petition. But, certainly not by way of a Letters Patent Appeal under clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court.The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However, we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead, we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April, 2016 in G.A.No.958 of 2016, if so
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Biswanath Ghosh(Dead By Lrs.) Vs. Gobinda Ghosh | rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment." 31. In the case of Cort and Gee vs. The Ambergate, Nottingham and Bostonand Eastern Junction Railway Company, (1851) 17 Queens Bench Reports 127, the Court observed that "In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured If, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. " 32. In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. 33. In the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarizedas under: i) Admittedly on 1.12.1964, two documents were executed viz. the sale deed in favour of the defendants on payment of Rs.3,000/-.ii) An agreement of re-conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time;iii) Before the expiry of the time stipulated in the deed of re- conveyance, the plaintiffs send a notice through a lawyer informing the defendants that as per the terms of the agreement of re-conveyance the plaintiffs tendered the amount of Rs.3,000/- and requested them to execute the sale deed. The defendants deferred the date and time on one pretext or another. In the same notice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount.iv) The defendants-respondents on 29.4.1968 sent reply to the plaintiffs notice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it could be done after some time. The reply dated 29.4.1968 is reproduced hereinbelow:"NOTICETo1. Sree Biswanath Ghosh2. Sri Guru Pada Ghosh3. Tarak Dasi Ghosh of Village Narikela, P.O. GaighataUnder instructions and advice of my clients Sri Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and in reply of the said notice dated 22.4.68. I am to intimate you that the averments and contents of the said notice under reply regarding offer of Rs. 3000/- by you and to requesting them that after harvesting of the crops after the expiry of moth of Pous in respect of the land in question and to execute and register the said sale deed are altogether false.That the land in question under the said notice my clients has shown Aush Paddy on the 4th day of Baisak within the knowledge of you and without any objection and the said paddy seeds have grown to some extent my clients are ready to execute and register the sale deed in favour of you at our own cost after acknowledged receipt of the said amount of Rs. 3000/- from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68.Sd/- Rabindra Nath Dutta Advocate29.4.68"v) The plaintiffs again sent a notice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy. The said letter is also extracted hereinbelow:"From:NirendraNath Basu, Advocate, Bongaon, P.O. Dt. 24 ParganasTo,1. Sri Narendra Nath Ghosh) Sons of Late Hazari Lai Ghosh2. Sri Harendra Nath Ghosh) Residents of Village Narikela, P.O. Gaighata, Dt. 24 Parganas, Dated at Bongaon on the 6th day of June, 1968.Sir,In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh. You are informed that after harvest the Aush Paddy within the month of Bhadra and within the said month acknowledged receipt a sum of Rs. 3000/- in cash from my client and execute and register a sale deed in favour of my client and deliver vacant possession in favour of my clients otherwise you will be liable for all costs and damages dated 6.6.68. Sd/- Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 P.S. Gaighata, Mouza- Narikela Settlement Plot No. 189 of .46 decimals. Settlement Plot No. 566 of .42 decimals out of .84 dec. Settlement Plot No. 416 of .14 decimals Settlement 413 of. 15 decimals. Total 1.17 acre of land. Sd/-vi) In spite of assurance, when the defendants failed to execute the sale deed, the plaintiffs filed the suit on 7.5.1970 before the Munsif, Bongaon stating therein that the plaintiffs have every right to reconvey and to take possession of the suit land. Although the suit was dismissed, but in appeal the First Appellate Court while dismissing the appeal by Judgment dated 16.12.1985 mentioned in the order that the plaintiffs have deposited the money as per directions of learned Munsif before the date fixed in the judgment passed for specific performance. 34. From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief Act. | 1[ds]From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re-conveyance. It also reveals that there were exchange of letters (Exhibit B and B1) whereupon the defendants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have conveyance of the suit land after harvest on payment of Rs.3000/- (Exhibit B2). The defendant also replied to such letter (Exhibit B3) agreeing to reconvey the suit land after the harvest.From perusal of the judgment passed by the High Court, it reveals that the High Court, after referring Section 16 and Section 20 of the Specific Relief Act and relying on the decision of the Supreme Court, came to the conclusion that since the readiness and willingness have not been averred and proved, both the Trial Court and First Appellate Court committed error in decreeing the suit for specific performance. The High Court further observed that by converting a suit under Section 36 of the Bengal Money lenders Act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of thefind force in the submission of Mr. Sanyal.The aforesaid order shows that the High Court while admitting the appeal has not formulated any substantial question of law and it was only after the arguments were concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment.23. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of law. Section 100 of the Code casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal. In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal. Since the same has not been done, the impugned judgment is vitiated in law.24. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court.In our considered opinion, the High Court has committed error of lawin setting aside the judgment and decree of the Trial Court and the First Appellate Court on the basis of aforesaid finding.In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive.From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief | 1 | 5,688 | 573 | ### 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:
rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment." 31. In the case of Cort and Gee vs. The Ambergate, Nottingham and Bostonand Eastern Junction Railway Company, (1851) 17 Queens Bench Reports 127, the Court observed that "In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured If, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. " 32. In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. 33. In the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarizedas under: i) Admittedly on 1.12.1964, two documents were executed viz. the sale deed in favour of the defendants on payment of Rs.3,000/-.ii) An agreement of re-conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time;iii) Before the expiry of the time stipulated in the deed of re- conveyance, the plaintiffs send a notice through a lawyer informing the defendants that as per the terms of the agreement of re-conveyance the plaintiffs tendered the amount of Rs.3,000/- and requested them to execute the sale deed. The defendants deferred the date and time on one pretext or another. In the same notice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount.iv) The defendants-respondents on 29.4.1968 sent reply to the plaintiffs notice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it could be done after some time. The reply dated 29.4.1968 is reproduced hereinbelow:"NOTICETo1. Sree Biswanath Ghosh2. Sri Guru Pada Ghosh3. Tarak Dasi Ghosh of Village Narikela, P.O. GaighataUnder instructions and advice of my clients Sri Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and in reply of the said notice dated 22.4.68. I am to intimate you that the averments and contents of the said notice under reply regarding offer of Rs. 3000/- by you and to requesting them that after harvesting of the crops after the expiry of moth of Pous in respect of the land in question and to execute and register the said sale deed are altogether false.That the land in question under the said notice my clients has shown Aush Paddy on the 4th day of Baisak within the knowledge of you and without any objection and the said paddy seeds have grown to some extent my clients are ready to execute and register the sale deed in favour of you at our own cost after acknowledged receipt of the said amount of Rs. 3000/- from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68.Sd/- Rabindra Nath Dutta Advocate29.4.68"v) The plaintiffs again sent a notice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy. The said letter is also extracted hereinbelow:"From:NirendraNath Basu, Advocate, Bongaon, P.O. Dt. 24 ParganasTo,1. Sri Narendra Nath Ghosh) Sons of Late Hazari Lai Ghosh2. Sri Harendra Nath Ghosh) Residents of Village Narikela, P.O. Gaighata, Dt. 24 Parganas, Dated at Bongaon on the 6th day of June, 1968.Sir,In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh. You are informed that after harvest the Aush Paddy within the month of Bhadra and within the said month acknowledged receipt a sum of Rs. 3000/- in cash from my client and execute and register a sale deed in favour of my client and deliver vacant possession in favour of my clients otherwise you will be liable for all costs and damages dated 6.6.68. Sd/- Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 P.S. Gaighata, Mouza- Narikela Settlement Plot No. 189 of .46 decimals. Settlement Plot No. 566 of .42 decimals out of .84 dec. Settlement Plot No. 416 of .14 decimals Settlement 413 of. 15 decimals. Total 1.17 acre of land. Sd/-vi) In spite of assurance, when the defendants failed to execute the sale deed, the plaintiffs filed the suit on 7.5.1970 before the Munsif, Bongaon stating therein that the plaintiffs have every right to reconvey and to take possession of the suit land. Although the suit was dismissed, but in appeal the First Appellate Court while dismissing the appeal by Judgment dated 16.12.1985 mentioned in the order that the plaintiffs have deposited the money as per directions of learned Munsif before the date fixed in the judgment passed for specific performance. 34. From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief Act.
### Response:
1
### Explanation:
From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re-conveyance. It also reveals that there were exchange of letters (Exhibit B and B1) whereupon the defendants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have conveyance of the suit land after harvest on payment of Rs.3000/- (Exhibit B2). The defendant also replied to such letter (Exhibit B3) agreeing to reconvey the suit land after the harvest.From perusal of the judgment passed by the High Court, it reveals that the High Court, after referring Section 16 and Section 20 of the Specific Relief Act and relying on the decision of the Supreme Court, came to the conclusion that since the readiness and willingness have not been averred and proved, both the Trial Court and First Appellate Court committed error in decreeing the suit for specific performance. The High Court further observed that by converting a suit under Section 36 of the Bengal Money lenders Act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of thefind force in the submission of Mr. Sanyal.The aforesaid order shows that the High Court while admitting the appeal has not formulated any substantial question of law and it was only after the arguments were concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment.23. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of law. Section 100 of the Code casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal. In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal. Since the same has not been done, the impugned judgment is vitiated in law.24. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court.In our considered opinion, the High Court has committed error of lawin setting aside the judgment and decree of the Trial Court and the First Appellate Court on the basis of aforesaid finding.In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive.From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief
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D. C. Johar and Sons Private Limited Vs. Sales Tax Officer, Ernakulam, and Another | SHAH, AG. C.J.1. The facts relevant to the determination of the appeal in this case are identical with the facts in Dyer Meakin Breweries Ltd. v. State of Kerala (Civil Appeal No. 910 of 1968) ([1970] 26 S.T.C. 248 (S.C.)) except that the appellant-company is not a producer or a manufacturer of foreign liquors. It purchases goods in other States and transports them to its place of business at Ernakulam. The appellant-company made a claim for exemption of "freight and packing and delivery charges" in respect of which separate bills were made out when selling the goods at Ernakulam.2. Counsel for the appellants relied upon a decision of this court in support of his contention that freight and packing and delivery charges were an admissible deduction : Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool ([1960] 11 S.T.C. 827 (S.C.)). But in that case the court did not decide the question as to the true effect of rule 5(1)(g) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, of which the terms are the same as rule 9(1) of the Kerala Rules. The case was decided against the taxpayer on the ground that no separate bills were made out by the taxpayer and one of the conditions for the claim was not satisfied.3. There is no substance in the contention raised by counsel for the appellant that in authorising the levy of sales tax on transport charges which formed a component of the price for which the goods were sold, the State Legislature had trespassed upon the legislative field reserved to the Centre by List I, entry 89 - the power to levy taxes on railway fares and freights. The tax levied is not a tax on railway freight : it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. The fact that the price includes the expenditure incurred by the company for railway freight for transporting the goods from the factory site to its place of business does not make the tax imposed upon that component a tax on railway freight. | 0[ds]There is no substance in the contention raised by counsel for the appellant that in authorising the levy of sales tax on transport charges which formed a component of the price for which the goods were sold, the State Legislature had trespassed upon the legislative field reserved to the Centre by List I, entry 89the power to levy taxes on railway fares and freights. The tax levied is not a tax on railway freight : it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. The fact that the price includes the expenditure incurred by the company for railway freight for transporting the goods from the factory site to its place of business does not make the tax imposed upon that component a tax on railway freight.The appeal fails and is dismissed with costs. | 0 | 407 | 159 | ### 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:
SHAH, AG. C.J.1. The facts relevant to the determination of the appeal in this case are identical with the facts in Dyer Meakin Breweries Ltd. v. State of Kerala (Civil Appeal No. 910 of 1968) ([1970] 26 S.T.C. 248 (S.C.)) except that the appellant-company is not a producer or a manufacturer of foreign liquors. It purchases goods in other States and transports them to its place of business at Ernakulam. The appellant-company made a claim for exemption of "freight and packing and delivery charges" in respect of which separate bills were made out when selling the goods at Ernakulam.2. Counsel for the appellants relied upon a decision of this court in support of his contention that freight and packing and delivery charges were an admissible deduction : Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool ([1960] 11 S.T.C. 827 (S.C.)). But in that case the court did not decide the question as to the true effect of rule 5(1)(g) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, of which the terms are the same as rule 9(1) of the Kerala Rules. The case was decided against the taxpayer on the ground that no separate bills were made out by the taxpayer and one of the conditions for the claim was not satisfied.3. There is no substance in the contention raised by counsel for the appellant that in authorising the levy of sales tax on transport charges which formed a component of the price for which the goods were sold, the State Legislature had trespassed upon the legislative field reserved to the Centre by List I, entry 89 - the power to levy taxes on railway fares and freights. The tax levied is not a tax on railway freight : it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. The fact that the price includes the expenditure incurred by the company for railway freight for transporting the goods from the factory site to its place of business does not make the tax imposed upon that component a tax on railway freight.
### Response:
0
### Explanation:
There is no substance in the contention raised by counsel for the appellant that in authorising the levy of sales tax on transport charges which formed a component of the price for which the goods were sold, the State Legislature had trespassed upon the legislative field reserved to the Centre by List I, entry 89the power to levy taxes on railway fares and freights. The tax levied is not a tax on railway freight : it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. The fact that the price includes the expenditure incurred by the company for railway freight for transporting the goods from the factory site to its place of business does not make the tax imposed upon that component a tax on railway freight.The appeal fails and is dismissed with costs.
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Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat & Another | of the period of office of the members and the constitution of a fresh committee after elections. The lawful authority of the members of the market committee was, notwithstanding the expiry of the period, extended by Sub-s. (3A) till the date of the first general meeting of the market committee.19. It may be noticed that there has been no deliberate refusal to hold elections. The period of the market committee was to end on September 18, 1961 and before that date the Collector of Ahmedabad had taken steps to hold elections to the market committee, but as a petition was pending in this Court challenging the vires of the Act the elections could not be held. This Court declared certain provisions earlier referred to as invalid and an Ordinance had to be issued modifying or validating those provisions of the Act. That Ordinance was later replaced by The Bombay and Saurashtra Agricultural Produce Markets (Gujarat Amendment and Validating Provisions) Act 21 of 1961. The Constitutional validity of Act 22 of 1939 as amended by Gujarat Act 21 of 1961 was again challenged before this Court and the elections had further to be postponed. This Court upheld the validity of the impugned provisions by judgment dated March 15, 1962: see Mohammadbhai Khudabux Chhipa v. State of Gujarat, 1962 Supp (3) SCR 875: (AIR 1962 SC 1517 ). Steps were again taken to hold elections, but in the meanwhile a declaration of emergency was made by the President, and Ordinance 11 of 1962 was issued by the Governor of Gujarat in exercise of the powers conferred upon him by the Constitution by virtue of which under S. 3 the term of office, inter alia, of the members of the local authority was extended for a period during which the proclamation of emergency was in force and thereafter for a period not exceeding six months. The market committee constituted or deemed to be constituted under the Bombay Agricultural Produce Markets Act 22 of 1939 was included in the definition of the term "local authority" under the said Ordinance. This Ordinance was substituted by The Gujarat Local Authorities (Extension of Term) Act, 1962. That Act was repealed by The Gujarat Local Authorities (Extension of Term) (Repeal) and the Gujarat Panchayats (Amendment) Act 35 of 1963, by the operating of which the terms of members of local authorities were to stand extended upto the end of March 1964 or such earlier date as the State Government or a person authorised by it may by notification in the Official Gazette specify. Thereafter the Gujarat Local Authorities (Further Extension of Term) Act 9 of 1964 was enacted. By that Act the term was extended upto March 1965 by S. 2 thereof.In the meanwhile the Gujarat Act 20 of 1964 being the Gujarat Agricultural Produce Markets Act was enacted and was brought into force and by virtue of S. 64 thereof the market committee established under the earlier Acts was deemed to be a market committee established for the said market under the new Act and members of the market committee holding office immediately before the commencement of the new Act continued to hold office under the new Act. The contention that there is no legally constituted market committee has therefore no force.20. Finally, the validity of the rules framed under the Bombay Act 22 of 1939 was canvassed. By S. 26(1) of the Bombay Act the state of Government was authorised to make rules for the purpose of carrying out the provisions of the Act. It was provided by Sub-s. (5) that the rules made under S. 26 shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. It was urged by the petitioner that the rules framed under the Bombay Act 22 of 1939 were not placed before the Legislative Assembly or the Legislative Council at the first session and therefore they had no legal validity. The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out the World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946.Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under S. 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of Legislature. Granting that the provisions of Sub-s. (5) of S. 26 by reason of the failure to place the rules before the Houses of Legislature were violated we are of the view that Sub-s. (5) of S. 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of S. 64 of the Gujarat Act 20 of 1964 they continue to remain in operation.21. | 0[ds]But assuming that such a power is conferred, we fail to appreciate how solely on that account it can be said that the provisions of the Act infringe Art. 19(1) (g) of the Constitution or may be regarded as conferring an arbitrary authority. Reasonable restrictions on the right of a citizen to carry on trade - retail as well as wholesale - may be placed by legislation. The test of the validity of the restrictions lies in the nature of the restrictions and not in the nature of trade. If regulation of trade in agricultural produce by the declaration of market area and imposition of restrictions may be regarded as reasonable when operating on the wholesale trade, it would be difficult to hold that the identical restrictions when operating on retail trade may be deemed unreasonable. We do not think that the observations made by this Court in Mohammad Hussains case, (1962) 2 SCR 659 : (AIR 1962 SC 97 ), justify the argument urged by the petitioner. Challenge to the validity of Ss. 5 and 6 must thereforeprovisions with regard to information and report to the market committee about the resale of the agricultural produce and the prohibition of sales otherwise than by open auction or by open agreement clearly indicate that R. 60 does not deal with retail sales.The learned Solicitor-General appearing on behalf of the State of Gujarat has conceded, and we think that the concession is rightly made, that the Act read together with the rules does not purport to place any restriction upon retail transactions in agricultural produce. Therefore no licence is required under the Act for carrying on retail trade in agricultural produce in the market area, and there is no prohibition against the carrying on of retail sale in agricultural produce in the market area.15.The argument that S. 27(2) does not provide fee in excess of the (sic) maximum licence fee may not be charged by the market committee is also without substance. In terms Sub-s. (2) provides that the licences may be granted in such forms, for such periods, on such terms and conditions and restrictions as may be prescribed or determined by the bye-laws and on payment of fees determined by the market committee within such maxima as may be prescribed. That clearly contemplated fixation of maxima by the rules made under S.market committee constituted or deemed to be constituted under the Bombay Agricultural Produce Markets Act 22 of 1939 was included in the definition of the term "local authority" under the said Ordinance. This Ordinance was substituted by The Gujarat Local Authorities (Extension of Term) Act, 1962. That Act was repealed by The Gujarat Local Authorities (Extension of Term) (Repeal) and the Gujarat Panchayats (Amendment) Act 35 of 1963, by the operating of which the terms of members of local authorities were to stand extended upto the end of March 1964 or such earlier date as the State Government or a person authorised by it may by notification in the Official Gazette specify. Thereafter the Gujarat Local Authorities (Further Extension of Term) Act 9 of 1964 was enacted. By that Act the term was extended upto March 1965 by S. 2 thereof.In the meanwhile the Gujarat Act 20 of 1964 being the Gujarat Agricultural Produce Markets Act was enacted and was brought into force and by virtue of S. 64 thereof the market committee established under the earlier Acts was deemed to be a market committee established for the said market under the new Act and members of the market committee holding office immediately before the commencement of the new Act continued to hold office under the new Act. The contention that there is no legally constituted market committee has therefore nosession of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946.Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under S. 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of Legislature. Granting that the provisions of Sub-s. (5) of S. 26 by reason of the failure to place the rules before the Houses of Legislature were violated we are of the view that Sub-s. (5) of S. 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of S. 64 of the Gujarat Act 20 of 1964 they continue to remain in operation. | 0 | 7,540 | 970 | ### Instruction:
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of the period of office of the members and the constitution of a fresh committee after elections. The lawful authority of the members of the market committee was, notwithstanding the expiry of the period, extended by Sub-s. (3A) till the date of the first general meeting of the market committee.19. It may be noticed that there has been no deliberate refusal to hold elections. The period of the market committee was to end on September 18, 1961 and before that date the Collector of Ahmedabad had taken steps to hold elections to the market committee, but as a petition was pending in this Court challenging the vires of the Act the elections could not be held. This Court declared certain provisions earlier referred to as invalid and an Ordinance had to be issued modifying or validating those provisions of the Act. That Ordinance was later replaced by The Bombay and Saurashtra Agricultural Produce Markets (Gujarat Amendment and Validating Provisions) Act 21 of 1961. The Constitutional validity of Act 22 of 1939 as amended by Gujarat Act 21 of 1961 was again challenged before this Court and the elections had further to be postponed. This Court upheld the validity of the impugned provisions by judgment dated March 15, 1962: see Mohammadbhai Khudabux Chhipa v. State of Gujarat, 1962 Supp (3) SCR 875: (AIR 1962 SC 1517 ). Steps were again taken to hold elections, but in the meanwhile a declaration of emergency was made by the President, and Ordinance 11 of 1962 was issued by the Governor of Gujarat in exercise of the powers conferred upon him by the Constitution by virtue of which under S. 3 the term of office, inter alia, of the members of the local authority was extended for a period during which the proclamation of emergency was in force and thereafter for a period not exceeding six months. The market committee constituted or deemed to be constituted under the Bombay Agricultural Produce Markets Act 22 of 1939 was included in the definition of the term "local authority" under the said Ordinance. This Ordinance was substituted by The Gujarat Local Authorities (Extension of Term) Act, 1962. That Act was repealed by The Gujarat Local Authorities (Extension of Term) (Repeal) and the Gujarat Panchayats (Amendment) Act 35 of 1963, by the operating of which the terms of members of local authorities were to stand extended upto the end of March 1964 or such earlier date as the State Government or a person authorised by it may by notification in the Official Gazette specify. Thereafter the Gujarat Local Authorities (Further Extension of Term) Act 9 of 1964 was enacted. By that Act the term was extended upto March 1965 by S. 2 thereof.In the meanwhile the Gujarat Act 20 of 1964 being the Gujarat Agricultural Produce Markets Act was enacted and was brought into force and by virtue of S. 64 thereof the market committee established under the earlier Acts was deemed to be a market committee established for the said market under the new Act and members of the market committee holding office immediately before the commencement of the new Act continued to hold office under the new Act. The contention that there is no legally constituted market committee has therefore no force.20. Finally, the validity of the rules framed under the Bombay Act 22 of 1939 was canvassed. By S. 26(1) of the Bombay Act the state of Government was authorised to make rules for the purpose of carrying out the provisions of the Act. It was provided by Sub-s. (5) that the rules made under S. 26 shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. It was urged by the petitioner that the rules framed under the Bombay Act 22 of 1939 were not placed before the Legislative Assembly or the Legislative Council at the first session and therefore they had no legal validity. The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out the World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946.Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under S. 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of Legislature. Granting that the provisions of Sub-s. (5) of S. 26 by reason of the failure to place the rules before the Houses of Legislature were violated we are of the view that Sub-s. (5) of S. 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of S. 64 of the Gujarat Act 20 of 1964 they continue to remain in operation.21.
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But assuming that such a power is conferred, we fail to appreciate how solely on that account it can be said that the provisions of the Act infringe Art. 19(1) (g) of the Constitution or may be regarded as conferring an arbitrary authority. Reasonable restrictions on the right of a citizen to carry on trade - retail as well as wholesale - may be placed by legislation. The test of the validity of the restrictions lies in the nature of the restrictions and not in the nature of trade. If regulation of trade in agricultural produce by the declaration of market area and imposition of restrictions may be regarded as reasonable when operating on the wholesale trade, it would be difficult to hold that the identical restrictions when operating on retail trade may be deemed unreasonable. We do not think that the observations made by this Court in Mohammad Hussains case, (1962) 2 SCR 659 : (AIR 1962 SC 97 ), justify the argument urged by the petitioner. Challenge to the validity of Ss. 5 and 6 must thereforeprovisions with regard to information and report to the market committee about the resale of the agricultural produce and the prohibition of sales otherwise than by open auction or by open agreement clearly indicate that R. 60 does not deal with retail sales.The learned Solicitor-General appearing on behalf of the State of Gujarat has conceded, and we think that the concession is rightly made, that the Act read together with the rules does not purport to place any restriction upon retail transactions in agricultural produce. Therefore no licence is required under the Act for carrying on retail trade in agricultural produce in the market area, and there is no prohibition against the carrying on of retail sale in agricultural produce in the market area.15.The argument that S. 27(2) does not provide fee in excess of the (sic) maximum licence fee may not be charged by the market committee is also without substance. In terms Sub-s. (2) provides that the licences may be granted in such forms, for such periods, on such terms and conditions and restrictions as may be prescribed or determined by the bye-laws and on payment of fees determined by the market committee within such maxima as may be prescribed. That clearly contemplated fixation of maxima by the rules made under S.market committee constituted or deemed to be constituted under the Bombay Agricultural Produce Markets Act 22 of 1939 was included in the definition of the term "local authority" under the said Ordinance. This Ordinance was substituted by The Gujarat Local Authorities (Extension of Term) Act, 1962. That Act was repealed by The Gujarat Local Authorities (Extension of Term) (Repeal) and the Gujarat Panchayats (Amendment) Act 35 of 1963, by the operating of which the terms of members of local authorities were to stand extended upto the end of March 1964 or such earlier date as the State Government or a person authorised by it may by notification in the Official Gazette specify. Thereafter the Gujarat Local Authorities (Further Extension of Term) Act 9 of 1964 was enacted. By that Act the term was extended upto March 1965 by S. 2 thereof.In the meanwhile the Gujarat Act 20 of 1964 being the Gujarat Agricultural Produce Markets Act was enacted and was brought into force and by virtue of S. 64 thereof the market committee established under the earlier Acts was deemed to be a market committee established for the said market under the new Act and members of the market committee holding office immediately before the commencement of the new Act continued to hold office under the new Act. The contention that there is no legally constituted market committee has therefore nosession of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946.Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under S. 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of Legislature. Granting that the provisions of Sub-s. (5) of S. 26 by reason of the failure to place the rules before the Houses of Legislature were violated we are of the view that Sub-s. (5) of S. 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of S. 64 of the Gujarat Act 20 of 1964 they continue to remain in operation.
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Thakur Kamta Prasad Singh (Dead) By L.Rs Vs. The State Of Bihar | The total compensation awarded by the Land Acquisition officer came to Rs. 86, 070.92. The appellant got a reference made under section 18 of the Act. Learned Additional District Judge Arrah who disposed of the reference held the market value of the land to be Rs. 800 per katha. It is stated that there are 32 kathas in an acre. On appeal by the State the High Court assessed the market value of the land at Rs. 475 per katha.3. In appeal before us, learned counsel for the appellant has assailed the judgment of the High Court and has contended that the High Court was in error in reducing the rate at which compensation had been awarded. As against that, learned counsel for the respondent-State has canvassed for the correctness of the view taken by the High Court.We have given the matter our consideration, and are of the view that there is no merit in this appeal. A number of documents were filed on behalf of the State to show the market value of the land in question. Those documents showed that a plot measuring 66 acres in the same village, in which the land in dispute is situated, was sold for Rs . 2, 000 on March 13, 1958 at the rate of Rs. 94 per katha. Another sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs. 58 per katha. A third transaction related to the sale of .06 acre of land for Rs. 1 00 on August 12, 1957 at the rate of Rs. 52 per katha. The Additional District Judge excluded these sale transactions out of consideration on the ground that the plots which were the subject matter of those sales were at some distance from the acquired land. The High Court took the view, in our opinion rightly, that these sale transactions could not be excluded altogether from consideration. The High Court also took into account three other sale transactions which had been relied upon by the appellant. Those sale transactions related to sale of five dhurs of land for Rs. 275 on October 19, 1957 at the rate of Rs. 1, 100 per katha, 15 dhurs of land for Rs. 750 on November 5, 1956 at the rate of Rs. 1, 000 per katha and 15 dhurs of la nd for Rs. 750/- on September 28, 1956 at the rate of Rs. 1, 000 per katha. One katha is said to consist of 20 dhurs. The land which was the subject of these sale transactions abutted the road and, from the small size of the plots, it appears that they were purchased for the purpose of constructing shops or similar buildings thereon. The land now sought to be acquired does not abut the road. It is in evidence that in making acquisition the strip of the land of the appellant up to a depth o f 100 ft. from the road was not acquired. The High Court on taking into consideration the above three sale transactions relied upon by the appellant and three sale transactions relied upon by the respondent found the mean price of the land covered by the six sale deeds to be a little more than Rs. 460 per katha. The High Court in the circumstances came to the conclusion that the just and fair market value of the land should be assessed at Rs. 475 per katha. The above rate included, according to the High Court, the potential value of the land. In addition to that, the appellant was held entitled to 15 per cent solatium for compulsory acquisition. We find no infirmity in the above approach of the High Court. The finding of the High Court is based upon consideration of the evidence adduced in the case, and no cogent ground has been shown to us as to why we should interfere with that finding.We may observe that the High Court excluded from consideration certain sale deeds executed by the appellant. These transactions related to small plots of land situated on the roadside and were entered in to after the land in dispute had been notified for acquisition. In the opinion of the High Court, the said sale deeds could not form a safe criterion for assessing the market value of the acquired land because they had been executed by the claimant himself after the notification. It was also observed that the plots sold were quite suitable for shop or residential purposes. We find no sufficient reason to take a contrary view.4. Section 23 of the Act provides that in determining the amount of compensation to be awarded for land acquisition under the Act the Court shall inter alia take into consideration the market value of the land at the date of the publication of the notification under section 4 of the Act. Market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantages due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess work inherent in most cases involving determination of the market value of the acquired land, but this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, its assessment of the fair market value of the acquired land should not be disturbed. No such infirmity has been brought to our notice as might induce us to disturb the finding of the High Court.5. | 0[ds]We have given the matter our consideration, and are of the view that there is no merit in this appeal.A number of documents were filed on behalf of the State to show the market value of the land in question. Those documents showed that a plot measuring 66 acres in the same village, in which the land in dispute is situated, was sold for Rs . 2, 000 on March 13, 1958 at the rate of Rs. 94 per katha. Another sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs. 58 per katha. A third transaction related to the sale of .06 acre of land for Rs. 1 00 on August 12, 1957 at the rate of Rs. 52 per katha. The Additional District Judge excluded these sale transactions out of consideration on the ground that the plots which were the subject matter of those sales were at some distance from the acquired land. The High Court took the view, in our opinion rightly, that these sale transactions could not be excluded altogether from consideration. The High Court also took into account three other sale transactions which had been relied upon by the appellant. Those sale transactions related to sale of five dhurs of land for Rs. 275 on October 19, 1957 at the rate of Rs. 1, 100 per katha, 15 dhurs of land for Rs. 750 on November 5, 1956 at the rate of Rs. 1, 000 per katha and 15 dhurs of la nd for Rs. 750/- on September 28, 1956 at the rate of Rs. 1, 000 per katha. One katha is said to consist of 20 dhurs. The land which was the subject of these sale transactions abutted the road and, from the small size of the plots, it appears that they were purchased for the purpose of constructing shops or similar buildings thereon. The land now sought to be acquired does not abut the road. It is in evidence that in making acquisition the strip of the land of the appellant up to a depth o f 100 ft. from the road was not acquired. The High Court on taking into consideration the above three sale transactions relied upon by the appellant and three sale transactions relied upon by the respondent found the mean price of the land covered by the six sale deeds to be a little more than Rs. 460 per katha. The High Court in the circumstances came to the conclusion that the just and fair market value of the land should be assessed at Rs. 475 per katha. The above rate included, according to the High Court, the potential value of the land. In addition to that, the appellant was held entitled to 15 per cent solatium for compulsory acquisition. We find no infirmity in the above approach of the High Court. The finding of the High Court is based upon consideration of the evidence adduced in the case, and no cogent ground has been shown to us as to why we should interfere with that finding.We may observe that the High Court excluded from consideration certain sale deeds executed by the appellant. These transactions related to small plots of land situated on the roadside and were entered in to after the land in dispute had been notified for acquisition. In the opinion of the High Court, the said sale deeds could not form a safe criterion for assessing the market value of the acquired land because they had been executed by the claimant himself after the notification. It was also observed that the plots sold were quite suitable for shop or residential purposes. We find no sufficient reason to take a contrary23 of the Act provides that in determining the amount of compensation to be awarded for land acquisition under the Act the Court shall inter alia take into consideration the market value of the land at the date of the publication of the notification under section 4 of the Act. Market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantages due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess work inherent in most cases involving determination of the market value of the acquired land, but this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, its assessment of the fair market value of the acquired land should not be disturbed. No such infirmity has been brought to our notice as might induce us to disturb the finding of the High Court. | 0 | 1,279 | 929 | ### Instruction:
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The total compensation awarded by the Land Acquisition officer came to Rs. 86, 070.92. The appellant got a reference made under section 18 of the Act. Learned Additional District Judge Arrah who disposed of the reference held the market value of the land to be Rs. 800 per katha. It is stated that there are 32 kathas in an acre. On appeal by the State the High Court assessed the market value of the land at Rs. 475 per katha.3. In appeal before us, learned counsel for the appellant has assailed the judgment of the High Court and has contended that the High Court was in error in reducing the rate at which compensation had been awarded. As against that, learned counsel for the respondent-State has canvassed for the correctness of the view taken by the High Court.We have given the matter our consideration, and are of the view that there is no merit in this appeal. A number of documents were filed on behalf of the State to show the market value of the land in question. Those documents showed that a plot measuring 66 acres in the same village, in which the land in dispute is situated, was sold for Rs . 2, 000 on March 13, 1958 at the rate of Rs. 94 per katha. Another sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs. 58 per katha. A third transaction related to the sale of .06 acre of land for Rs. 1 00 on August 12, 1957 at the rate of Rs. 52 per katha. The Additional District Judge excluded these sale transactions out of consideration on the ground that the plots which were the subject matter of those sales were at some distance from the acquired land. The High Court took the view, in our opinion rightly, that these sale transactions could not be excluded altogether from consideration. The High Court also took into account three other sale transactions which had been relied upon by the appellant. Those sale transactions related to sale of five dhurs of land for Rs. 275 on October 19, 1957 at the rate of Rs. 1, 100 per katha, 15 dhurs of land for Rs. 750 on November 5, 1956 at the rate of Rs. 1, 000 per katha and 15 dhurs of la nd for Rs. 750/- on September 28, 1956 at the rate of Rs. 1, 000 per katha. One katha is said to consist of 20 dhurs. The land which was the subject of these sale transactions abutted the road and, from the small size of the plots, it appears that they were purchased for the purpose of constructing shops or similar buildings thereon. The land now sought to be acquired does not abut the road. It is in evidence that in making acquisition the strip of the land of the appellant up to a depth o f 100 ft. from the road was not acquired. The High Court on taking into consideration the above three sale transactions relied upon by the appellant and three sale transactions relied upon by the respondent found the mean price of the land covered by the six sale deeds to be a little more than Rs. 460 per katha. The High Court in the circumstances came to the conclusion that the just and fair market value of the land should be assessed at Rs. 475 per katha. The above rate included, according to the High Court, the potential value of the land. In addition to that, the appellant was held entitled to 15 per cent solatium for compulsory acquisition. We find no infirmity in the above approach of the High Court. The finding of the High Court is based upon consideration of the evidence adduced in the case, and no cogent ground has been shown to us as to why we should interfere with that finding.We may observe that the High Court excluded from consideration certain sale deeds executed by the appellant. These transactions related to small plots of land situated on the roadside and were entered in to after the land in dispute had been notified for acquisition. In the opinion of the High Court, the said sale deeds could not form a safe criterion for assessing the market value of the acquired land because they had been executed by the claimant himself after the notification. It was also observed that the plots sold were quite suitable for shop or residential purposes. We find no sufficient reason to take a contrary view.4. Section 23 of the Act provides that in determining the amount of compensation to be awarded for land acquisition under the Act the Court shall inter alia take into consideration the market value of the land at the date of the publication of the notification under section 4 of the Act. Market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantages due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess work inherent in most cases involving determination of the market value of the acquired land, but this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, its assessment of the fair market value of the acquired land should not be disturbed. No such infirmity has been brought to our notice as might induce us to disturb the finding of the High Court.5.
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0
### Explanation:
We have given the matter our consideration, and are of the view that there is no merit in this appeal.A number of documents were filed on behalf of the State to show the market value of the land in question. Those documents showed that a plot measuring 66 acres in the same village, in which the land in dispute is situated, was sold for Rs . 2, 000 on March 13, 1958 at the rate of Rs. 94 per katha. Another sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs. 58 per katha. A third transaction related to the sale of .06 acre of land for Rs. 1 00 on August 12, 1957 at the rate of Rs. 52 per katha. The Additional District Judge excluded these sale transactions out of consideration on the ground that the plots which were the subject matter of those sales were at some distance from the acquired land. The High Court took the view, in our opinion rightly, that these sale transactions could not be excluded altogether from consideration. The High Court also took into account three other sale transactions which had been relied upon by the appellant. Those sale transactions related to sale of five dhurs of land for Rs. 275 on October 19, 1957 at the rate of Rs. 1, 100 per katha, 15 dhurs of land for Rs. 750 on November 5, 1956 at the rate of Rs. 1, 000 per katha and 15 dhurs of la nd for Rs. 750/- on September 28, 1956 at the rate of Rs. 1, 000 per katha. One katha is said to consist of 20 dhurs. The land which was the subject of these sale transactions abutted the road and, from the small size of the plots, it appears that they were purchased for the purpose of constructing shops or similar buildings thereon. The land now sought to be acquired does not abut the road. It is in evidence that in making acquisition the strip of the land of the appellant up to a depth o f 100 ft. from the road was not acquired. The High Court on taking into consideration the above three sale transactions relied upon by the appellant and three sale transactions relied upon by the respondent found the mean price of the land covered by the six sale deeds to be a little more than Rs. 460 per katha. The High Court in the circumstances came to the conclusion that the just and fair market value of the land should be assessed at Rs. 475 per katha. The above rate included, according to the High Court, the potential value of the land. In addition to that, the appellant was held entitled to 15 per cent solatium for compulsory acquisition. We find no infirmity in the above approach of the High Court. The finding of the High Court is based upon consideration of the evidence adduced in the case, and no cogent ground has been shown to us as to why we should interfere with that finding.We may observe that the High Court excluded from consideration certain sale deeds executed by the appellant. These transactions related to small plots of land situated on the roadside and were entered in to after the land in dispute had been notified for acquisition. In the opinion of the High Court, the said sale deeds could not form a safe criterion for assessing the market value of the acquired land because they had been executed by the claimant himself after the notification. It was also observed that the plots sold were quite suitable for shop or residential purposes. We find no sufficient reason to take a contrary23 of the Act provides that in determining the amount of compensation to be awarded for land acquisition under the Act the Court shall inter alia take into consideration the market value of the land at the date of the publication of the notification under section 4 of the Act. Market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantages due to the carrying out of the scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess work inherent in most cases involving determination of the market value of the acquired land, but this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, its assessment of the fair market value of the acquired land should not be disturbed. No such infirmity has been brought to our notice as might induce us to disturb the finding of the High Court.
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UNION OF INDIA Vs. AVTAR CHAND | Abhay Manohar Sapre, J. 1. These appeals are directed against the final judgment and order dated 01.03.2007 passed by the High Court of Punjab & Haryana at Chandigarh in Writ Petition Nos. 3126, 3128, 3129, 3130, 3132, 3133-3145, 3148-3151 and 3153-3161 of 2007 whereby the High Court dismissed the writ petitions filed by the appellants herein. 2. A few facts need mention infra for the disposal of these appeals which involve a short point. 3. The appellant No.1 is the Union of India (Commander, Western Base Workshop, General Reserve Engineers Force at Pathankot) and respondent No.2 is its official (Chief Engineer(Project), Sampark, P.O. Gangyal, Jammu) whereas the respondents are the workers. 4. The respondents, who were the skilled workers, worked with the appellant No.1?s workshop (GREF) at Pathankot for the period from 01.03.2001 to 30.06.2004. The respondents, however, raised a grievance that during the said period, they were paid less wages than the minimum wages fixed for their category of employment under the Minimum Wages Act, 1948 (for short called, ?the Act?) and which were legally payable to them. 5. In other words, their grievance was that the appellants did not pay to them the minimum wages prescribed under the Act to which they were legally entitled but were paid less than the minimum wages. The respondents, therefore, claimed the difference of what was paid to them and what were legally payable to them under the Act by the appellants. According to the respondents, each worker was, therefore, entitled to claim a sum of Rs.49,804/- from the appellants being the difference in the wages. 6. Since the appellants did not pay the difference of amount claimed by each respondent, the respondents filed applications (Claim Application No.552/2004 & others connected matters) under Section 20(3) of the Act before the Specified Authority, Chandigarh. 7. By order dated 01.11.2006 (Annexure-P-2), the Specified Authority allowed the applications and directed the appellants to pay to each respondent a sum of Rs.49,804/- towards the claim plus Rs.99,608/- towards the compensation (200% of the claim) = Total - Rs.1,49,412/-. 8. The appellants felt aggrieved and filed the writ petitions in the High Court of Punjab & Haryana at Chandigarh out of which these appeals arise. By impugned order, the High Court dismissed the writ petitions and affirmed the order of the Specified Authority giving rise to filing of the present appeals by way of special leave in this Court. 9. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? writ petitions. 10. Heard Mr. Ajit Kumar Sinha, learned senior counsel for the appellants and Mr. Binay Kumar Das, learned counsel for the respondents. 11. Mr. Ajit Kr. Sinha, learned senior counsel for the appellants while assailing the legality of the impugned order argued only one point. It was his submission that in an identical case, the High Court awarded 100% compensation to similarly placed workers in CWP No. 3127/2007 decided on 01.03.2007 whereas, in the present case, the High Court awarded compensation at the rate of 200% payable to each respondent-worker. 12. Learned counsel urged that in the absence of any reason or/and justification for awarding compensation at the rate of 200% in the present case, whereas awarding compensation at the rate of 100% to other similarly situated workers, the award of compensation at the rate of 200% to each respondent in this case does not stand to any reason and hence not legally sustainable. 13. Learned counsel, therefore, urged that the High Court should have also awarded similar compensation at the rate of 100% to each respondent alike the one awarded in other case. 14. In reply, learned counsel for the respondents supported the impugned order and contended that no case is made out to call for any interference. 15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed on behalf of the appellants, we find substance in the submission of the learned counsel for the appellants. 16. In our considered opinion, the High Court, in the case at hand also should have awarded compensation at the rate of 100% to each respondent alike the one awarded in other case (CWP No. 3127/2007 decided on 01.03.2007) which had attained finality. 17. In fact, we do not find any justification to award compensation at the rate of 200% to the respondents when in other identical case, the High Court awarded compensation at the rate of 100% to similarly placed workers. 18. Though, it was the discretion of the Courts/Authority to award compensation with different percentage in every case but it was necessary to give reasons in support of award of such compensation. It was much more so when the High Court awarded compensation at the rate of 200% to some workers and awarded at the rate of 100% to other workers though similarly situated. This necessitated for giving of reasons as to why compensation was being awarded at the rate of 200% to one set of workers as against the other set of workers at the rate of 100% when all were similarly placed. The High Court having failed to give any reason while awarding compensation at two rates, it calls for interference in these appeals. | 1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed on behalf of the appellants, we find substance in the submission of the learned counsel for the appellants.In our considered opinion, the High Court, in the case at hand also should have awarded compensation at the rate of 100% to each respondent alike the one awarded in other case (CWP No. 3127/2007 decided on 01.03.2007) which had attained finality.In fact, we do not find any justification to award compensation at the rate of 200% to the respondents when in other identical case, the High Court awarded compensation at the rate of 100% to similarly placed workers.Though, it was the discretion of the Courts/Authority to award compensation with different percentage in every case but it was necessary to give reasons in support of award of such compensation. It was much more so when the High Court awarded compensation at the rate of 200% to some workers and awarded at the rate of 100% to other workers though similarly situated. This necessitated for giving of reasons as to why compensation was being awarded at the rate of 200% to one set of workers as against the other set of workers at the rate of 100% when all were similarly placed. The High Court having failed to give any reason while awarding compensation at two rates, it calls for interference in these appeals. | 1 | 1,026 | 269 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
Abhay Manohar Sapre, J. 1. These appeals are directed against the final judgment and order dated 01.03.2007 passed by the High Court of Punjab & Haryana at Chandigarh in Writ Petition Nos. 3126, 3128, 3129, 3130, 3132, 3133-3145, 3148-3151 and 3153-3161 of 2007 whereby the High Court dismissed the writ petitions filed by the appellants herein. 2. A few facts need mention infra for the disposal of these appeals which involve a short point. 3. The appellant No.1 is the Union of India (Commander, Western Base Workshop, General Reserve Engineers Force at Pathankot) and respondent No.2 is its official (Chief Engineer(Project), Sampark, P.O. Gangyal, Jammu) whereas the respondents are the workers. 4. The respondents, who were the skilled workers, worked with the appellant No.1?s workshop (GREF) at Pathankot for the period from 01.03.2001 to 30.06.2004. The respondents, however, raised a grievance that during the said period, they were paid less wages than the minimum wages fixed for their category of employment under the Minimum Wages Act, 1948 (for short called, ?the Act?) and which were legally payable to them. 5. In other words, their grievance was that the appellants did not pay to them the minimum wages prescribed under the Act to which they were legally entitled but were paid less than the minimum wages. The respondents, therefore, claimed the difference of what was paid to them and what were legally payable to them under the Act by the appellants. According to the respondents, each worker was, therefore, entitled to claim a sum of Rs.49,804/- from the appellants being the difference in the wages. 6. Since the appellants did not pay the difference of amount claimed by each respondent, the respondents filed applications (Claim Application No.552/2004 & others connected matters) under Section 20(3) of the Act before the Specified Authority, Chandigarh. 7. By order dated 01.11.2006 (Annexure-P-2), the Specified Authority allowed the applications and directed the appellants to pay to each respondent a sum of Rs.49,804/- towards the claim plus Rs.99,608/- towards the compensation (200% of the claim) = Total - Rs.1,49,412/-. 8. The appellants felt aggrieved and filed the writ petitions in the High Court of Punjab & Haryana at Chandigarh out of which these appeals arise. By impugned order, the High Court dismissed the writ petitions and affirmed the order of the Specified Authority giving rise to filing of the present appeals by way of special leave in this Court. 9. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? writ petitions. 10. Heard Mr. Ajit Kumar Sinha, learned senior counsel for the appellants and Mr. Binay Kumar Das, learned counsel for the respondents. 11. Mr. Ajit Kr. Sinha, learned senior counsel for the appellants while assailing the legality of the impugned order argued only one point. It was his submission that in an identical case, the High Court awarded 100% compensation to similarly placed workers in CWP No. 3127/2007 decided on 01.03.2007 whereas, in the present case, the High Court awarded compensation at the rate of 200% payable to each respondent-worker. 12. Learned counsel urged that in the absence of any reason or/and justification for awarding compensation at the rate of 200% in the present case, whereas awarding compensation at the rate of 100% to other similarly situated workers, the award of compensation at the rate of 200% to each respondent in this case does not stand to any reason and hence not legally sustainable. 13. Learned counsel, therefore, urged that the High Court should have also awarded similar compensation at the rate of 100% to each respondent alike the one awarded in other case. 14. In reply, learned counsel for the respondents supported the impugned order and contended that no case is made out to call for any interference. 15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed on behalf of the appellants, we find substance in the submission of the learned counsel for the appellants. 16. In our considered opinion, the High Court, in the case at hand also should have awarded compensation at the rate of 100% to each respondent alike the one awarded in other case (CWP No. 3127/2007 decided on 01.03.2007) which had attained finality. 17. In fact, we do not find any justification to award compensation at the rate of 200% to the respondents when in other identical case, the High Court awarded compensation at the rate of 100% to similarly placed workers. 18. Though, it was the discretion of the Courts/Authority to award compensation with different percentage in every case but it was necessary to give reasons in support of award of such compensation. It was much more so when the High Court awarded compensation at the rate of 200% to some workers and awarded at the rate of 100% to other workers though similarly situated. This necessitated for giving of reasons as to why compensation was being awarded at the rate of 200% to one set of workers as against the other set of workers at the rate of 100% when all were similarly placed. The High Court having failed to give any reason while awarding compensation at two rates, it calls for interference in these appeals.
### Response:
1
### Explanation:
15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed on behalf of the appellants, we find substance in the submission of the learned counsel for the appellants.In our considered opinion, the High Court, in the case at hand also should have awarded compensation at the rate of 100% to each respondent alike the one awarded in other case (CWP No. 3127/2007 decided on 01.03.2007) which had attained finality.In fact, we do not find any justification to award compensation at the rate of 200% to the respondents when in other identical case, the High Court awarded compensation at the rate of 100% to similarly placed workers.Though, it was the discretion of the Courts/Authority to award compensation with different percentage in every case but it was necessary to give reasons in support of award of such compensation. It was much more so when the High Court awarded compensation at the rate of 200% to some workers and awarded at the rate of 100% to other workers though similarly situated. This necessitated for giving of reasons as to why compensation was being awarded at the rate of 200% to one set of workers as against the other set of workers at the rate of 100% when all were similarly placed. The High Court having failed to give any reason while awarding compensation at two rates, it calls for interference in these appeals.
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Chattisgarh Vidyut Mandal Abhiyanta Sang Vs. Chattisgarh State Elect.Regul.Commn.&Anr | Bhushan, learned senior counsel, appearing on behalf of M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006 and Mr. Kavin Gulati, learned counsel appearing on behalf of Chhattisgarh Vidyut Mandal Abhiyanta Sangh - appellant in C.A.No. 3996 of 2006. 4. Counsel for the appellant in C.A.No.3996 of 2006 has adopted the arguments of Mr. Ravi Shankar Prasad, learned senior counsel, appearing for the appellant in C.A.No.4268 of 2006. 5. In C.A.No.4268 of 2006, the appellant has assailed the order dated 29.11.2005 passed by the Commission, granting license in favour of respondent No.2 herein and the appellant in C.A.No.4529 of 2006.6. Mr. Ravi Shankar Prasad, learned senior counsel appearing for the appellant, would contend that the impugned order of the Commission granting license to respondent No.2 - M/s Jindal Steel and Power Limited, is contrary to the provisions of Section 14 particularly proviso 6 of the Section. He would also contend that the grant of license is contrary to Section 43, the National Electricity Policy framed under Section 3 particularly 5.4.7. which according to the counsel is statutory in character and sub-rule 2 of Rule 3 of the Code of Conduct Rules, 2005 and explanation thereof. He would also contend that the grant of license in favour of respondent No.2 would also offend the provisions of Section 41 proviso 3 and Section 86(4) of the Act. In this connection, counsel has taken us to the grounds taken in the memo of appeal filed by the appellant. He has also taken us to the entire impugned judgment rendered by the Tribunal. The Tribunal has not at all dealt with the grounds urged by the appellant in the judgment. The Tribunal, however, rejected the grounds in paragraph 38 as under: "Taking up the fourth point, Concedingly after coming into force of The Electricity Act 2003 the Jindal Power has submitted an application for grant of distribution license under Section 12 of the Act. Section 14 of the Act provides for the grant of license. Section 15 of the Act prescribes procedure for grant of license. Though the Electricity Board has raised an objection, it is a clear after thought presumably because of change or shifting of personalities in power, and such shifting stand had been adopted. The objections raised by Electricity Board are devoid of merits. The Regulatory Commission has considered the request of Jindal Power and directed issue of distribution license. We do not find any illegality or error in the grant of license as Jindal Power do possess all the requirements for the grant." 7. M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006, was aggrieved by the order of the Commission recorded in paragraph 22 of the Order. Paragraph 22 of the Order is in the following terms:- "The last issue for discussion is the treatment of the period from 1.4.04 till the date of the grant of distribution licence, during which supply of power by the applicant has been without legal authority. As already discussed in para 11 to 13 ante, the applicant did not have the necessary legal authority either under the 1910 Act or under the present Act to supply electricity in his industrial estate. This constitutes a clear contravention of the provisions of Sec.12 of the Act that mandates licence to be obtained for supply of electricity. This act of the applicant is punishable under Sec.142 of the Act. The applicant is clearly liable for penalty under this provision of law. Although no opportunity has specifically been provided to the applicant of being heard in this regard as required and the provision of this section, the elaborate proceedings in this case has provided sufficient opportunity to the applicant to prove that he had not contravened the provision of the Act, in supply of power to his industrial estate. In fact, his main case is that he had the legal authority for his action, which we have not accepted. The Commission, therefore, feels that there is no need for another opportunity being given to the applicant of being heard in the matter. The Commission directs that the applicant pay a penalty of Rs. One lakh for contravention of the provisions of the Act aforementioned. The amount shall be deposited with the Secretary of the Commission within seven days of this order." 8. Aggrieved by this order M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006 also filed appeal No.27 of 2006 before the Tribunal.9. The ground taken in the appeal was that Jindal Power does not require the license for supply of electricity as in terms of Section 10(2) of the Act as a generating company, it is competent to supply electricity to any person without using the transmission lines of the Electricity Board. After considering the ground of appeal, the Tribunal framed the following issues:-1. Whether Jindal Power was licensed to distribute electricity at any time? Without securing a license is it permissible for Jindal Power to distribute Power?2. Whether Jindal Power could claim that it is a deemed licensee entitled to distribute power after coming into force of The Electricity Act, 2003?10. Mr. Shanti Bhushan, learned senior counsel, has taken us through the entire judgment of the Tribunal but the questions so framed were not at all addressed particularly the application of Section 10(2) of the Act. 11. It is in these circumstances, learned senior counsels, appearing for the respective appellants, contended that this is eminently a fit case where this Court should set aside the order of the Tribunal and the matter be remitted to the Tribunal for fresh decision after considering all the grounds raised in the respective appeals. In the facts as alluded above we would also think so.12. We may also hasten to note that the appeal under Section 111 before the Tribunal is in the nature of first appeal. The Tribunal, therefore, must examine the entire grounds of appeal and record its reasons on each ground while disposing of the appeal. | 1[ds]Mr. Shanti Bhushan, learned senior counsel, has taken us through the entire judgment of the Tribunal but the questions so framed were not at all addressed particularly the application of Section 10(2) of the Act.It is in these circumstances, learned senior counsels, appearing for the respective appellants, contended that this is eminently a fit case where this Court should set aside the order of the Tribunal and the matter be remitted to the Tribunal for fresh decision after considering all the grounds raised in the respective appeals. In the facts as alluded above we would also think so.12. We may also hasten to note that the appeal under Section 111 before the Tribunal is in the nature of first appeal. The Tribunal, therefore, must examine the entire grounds of appeal and record its reasons on each ground while disposing of the appeal. | 1 | 1,267 | 160 | ### 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:
Bhushan, learned senior counsel, appearing on behalf of M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006 and Mr. Kavin Gulati, learned counsel appearing on behalf of Chhattisgarh Vidyut Mandal Abhiyanta Sangh - appellant in C.A.No. 3996 of 2006. 4. Counsel for the appellant in C.A.No.3996 of 2006 has adopted the arguments of Mr. Ravi Shankar Prasad, learned senior counsel, appearing for the appellant in C.A.No.4268 of 2006. 5. In C.A.No.4268 of 2006, the appellant has assailed the order dated 29.11.2005 passed by the Commission, granting license in favour of respondent No.2 herein and the appellant in C.A.No.4529 of 2006.6. Mr. Ravi Shankar Prasad, learned senior counsel appearing for the appellant, would contend that the impugned order of the Commission granting license to respondent No.2 - M/s Jindal Steel and Power Limited, is contrary to the provisions of Section 14 particularly proviso 6 of the Section. He would also contend that the grant of license is contrary to Section 43, the National Electricity Policy framed under Section 3 particularly 5.4.7. which according to the counsel is statutory in character and sub-rule 2 of Rule 3 of the Code of Conduct Rules, 2005 and explanation thereof. He would also contend that the grant of license in favour of respondent No.2 would also offend the provisions of Section 41 proviso 3 and Section 86(4) of the Act. In this connection, counsel has taken us to the grounds taken in the memo of appeal filed by the appellant. He has also taken us to the entire impugned judgment rendered by the Tribunal. The Tribunal has not at all dealt with the grounds urged by the appellant in the judgment. The Tribunal, however, rejected the grounds in paragraph 38 as under: "Taking up the fourth point, Concedingly after coming into force of The Electricity Act 2003 the Jindal Power has submitted an application for grant of distribution license under Section 12 of the Act. Section 14 of the Act provides for the grant of license. Section 15 of the Act prescribes procedure for grant of license. Though the Electricity Board has raised an objection, it is a clear after thought presumably because of change or shifting of personalities in power, and such shifting stand had been adopted. The objections raised by Electricity Board are devoid of merits. The Regulatory Commission has considered the request of Jindal Power and directed issue of distribution license. We do not find any illegality or error in the grant of license as Jindal Power do possess all the requirements for the grant." 7. M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006, was aggrieved by the order of the Commission recorded in paragraph 22 of the Order. Paragraph 22 of the Order is in the following terms:- "The last issue for discussion is the treatment of the period from 1.4.04 till the date of the grant of distribution licence, during which supply of power by the applicant has been without legal authority. As already discussed in para 11 to 13 ante, the applicant did not have the necessary legal authority either under the 1910 Act or under the present Act to supply electricity in his industrial estate. This constitutes a clear contravention of the provisions of Sec.12 of the Act that mandates licence to be obtained for supply of electricity. This act of the applicant is punishable under Sec.142 of the Act. The applicant is clearly liable for penalty under this provision of law. Although no opportunity has specifically been provided to the applicant of being heard in this regard as required and the provision of this section, the elaborate proceedings in this case has provided sufficient opportunity to the applicant to prove that he had not contravened the provision of the Act, in supply of power to his industrial estate. In fact, his main case is that he had the legal authority for his action, which we have not accepted. The Commission, therefore, feels that there is no need for another opportunity being given to the applicant of being heard in the matter. The Commission directs that the applicant pay a penalty of Rs. One lakh for contravention of the provisions of the Act aforementioned. The amount shall be deposited with the Secretary of the Commission within seven days of this order." 8. Aggrieved by this order M/s Jindal Steel and Power Limited - appellant in C.A.No.4529 of 2006 also filed appeal No.27 of 2006 before the Tribunal.9. The ground taken in the appeal was that Jindal Power does not require the license for supply of electricity as in terms of Section 10(2) of the Act as a generating company, it is competent to supply electricity to any person without using the transmission lines of the Electricity Board. After considering the ground of appeal, the Tribunal framed the following issues:-1. Whether Jindal Power was licensed to distribute electricity at any time? Without securing a license is it permissible for Jindal Power to distribute Power?2. Whether Jindal Power could claim that it is a deemed licensee entitled to distribute power after coming into force of The Electricity Act, 2003?10. Mr. Shanti Bhushan, learned senior counsel, has taken us through the entire judgment of the Tribunal but the questions so framed were not at all addressed particularly the application of Section 10(2) of the Act. 11. It is in these circumstances, learned senior counsels, appearing for the respective appellants, contended that this is eminently a fit case where this Court should set aside the order of the Tribunal and the matter be remitted to the Tribunal for fresh decision after considering all the grounds raised in the respective appeals. In the facts as alluded above we would also think so.12. We may also hasten to note that the appeal under Section 111 before the Tribunal is in the nature of first appeal. The Tribunal, therefore, must examine the entire grounds of appeal and record its reasons on each ground while disposing of the appeal.
### Response:
1
### Explanation:
Mr. Shanti Bhushan, learned senior counsel, has taken us through the entire judgment of the Tribunal but the questions so framed were not at all addressed particularly the application of Section 10(2) of the Act.It is in these circumstances, learned senior counsels, appearing for the respective appellants, contended that this is eminently a fit case where this Court should set aside the order of the Tribunal and the matter be remitted to the Tribunal for fresh decision after considering all the grounds raised in the respective appeals. In the facts as alluded above we would also think so.12. We may also hasten to note that the appeal under Section 111 before the Tribunal is in the nature of first appeal. The Tribunal, therefore, must examine the entire grounds of appeal and record its reasons on each ground while disposing of the appeal.
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Official Liquidator, High Court, Bombay Vs. Taru Jethmal Lalvani and Others | the directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No.12 (son of deceased respondent No.16 in Company Application No.16 of 1981) that the liability of the deceased respondent No.16 does not survive and hence he as an heir, cannot be brought on record, cannot be accepted.12.The present case, however, is somewhat different from the above cases decided by the Supreme Court. In the present case, respondent Nos.1 and 16 had died before the misfeasance summons was taken out. So that the misfeasance summons itself is being taken out against the heirs and legal representatives of the deceased. The appellant contends that in view of the principle laid down by the Supreme Court that the liability of a director or officer does not abate on his death, a misfeasance summons can be taken out against the heirs and legal representatives of such a deceased director or officer. Kerala High Court, however, in the case of Official Liquidator v. Ramakrishna Iyer, reported in 64 Company Cases, pg. 855, held that under section 543, a proceedings cannot be initiated against the legal representatives of a deceased director. The Kerala High Court has referred to the language of section 543 which contemplates a proceeding being taken out only against director, managing agent, secretary, treasurer, liquidator or officer of the company. The view taken by the Kerala High Court is supported by the decision in the case of Feltoms Executors, 1865-66 1 L.R. Eq. pg. 219, where section 165 of the English Companies Act, 1862, which is similar to our section 543 was considered. Vice Chancellor Kindersley held that the words "compel him to pay" in that section cannot be applied to executors and administrators of a deceased director. The same ratio was applied in the case of In re British Guardian Life Assurance Company, 1880 14 Ch.D. pg. 335.13.The Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No.16 is far beyond the period of limitation under section 543(2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.16.14.In the case of respondent No.1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No.1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No.1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No.1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the persent Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also.15. As regards the other heirs of resondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543(2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No.1. He was throughout aware of the fact one of the sons of respondent No.1 viz., respondent No.9 (in Company Application No.75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No.9 regarding other heirs of respondent No.1. Only in 1988 he made an application to bring on record the other heirs of respondent No.1. Such an application, made 7 years after the knowledge of the death of respondent No.1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.16.In the premises the learned Judge has rightly dismissed the Company Application. | 0[ds]Therefore, in view of section 543(2), in the present case the Official Liquidator should have taken out Misfeasance Summons within 5 years of the winding up order. He has done so by taking out the Misfeasance Summons on 15th June, 1981 which is before the expiry of five years from the date of the winding up order. He has, however, joined as party respondents at least two persons who were dead at that time viz.,respondent Nos.1 and 16. No Misfeasance Summons could have been taken out against a dead person. Therefore, Misfeasance Summons No.161 of 1981 cannot be considered as having been instituted against respondent Nos.1 and 16 ondo not see why a misfeasance summons should not be governed by the samefurther submits that even though the misfeasance summons is taken out against dead respondents, their heirs can be subsequently brought on record even beyond the period prescribed under section 543(2), because according to him, under section 543(2) only an application is required to be made within the prescribed period. Once an application is made, somebody can be subsequently joined as a party to it. Such an interpretation cannot be accepted. Section 543(2), when it refers to an application, must necessarily refer to an application against a specified person or persons. It cannot be an application in the abstract. Therefore, when the heir of a respondent who wasat the time when the original misfeasance summons was taken out, is brought on record, it is equivalent to taking out a fresh misfeasance summons against the heir. There is no question here of the amendment relating back to the date of the original misfeasance summons against some other parties. Therefore, this contention must be rejected. In view of this position, we do not see how the present Company Application No.75 of 1988 can beSupreme Court, therefore, held that in a proceeding under section 543 of the Companies Act, the death of one of the officers will not result in abatement of his liability. His heirs can be brought on record for the purpose of pursuing the remedy under section 543 as against the estate of the deceased officer or director. In this case, the Supreme Court was concerned with a situation where, during the pendency of misfeasance proceedings one of the directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No.12 (son of deceased respondent No.16 in Company Application No.16 of 1981) that the liability of the deceased respondent No.16 does not survive and hence he as an heir, cannot be brought on record, cannot beKerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No.16 is far beyond the period of limitation under section 543(2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.16.14.In the case of respondent No.1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No.1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No.1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No.1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the persent Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also.15. As regards the other heirs of resondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543(2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No.1. He was throughout aware of the fact one of the sons of respondent No.1 viz., respondent No.9 (in Company Application No.75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No.9 regarding other heirs of respondent No.1. Only in 1988 he made an application to bring on record the other heirs of respondent No.1. Such an application, made 7 years after the knowledge of the death of respondent No.1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.16.In the premises the learned Judge has rightly dismissed the Company Application. | 0 | 3,698 | 1,247 | ### 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 directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No.12 (son of deceased respondent No.16 in Company Application No.16 of 1981) that the liability of the deceased respondent No.16 does not survive and hence he as an heir, cannot be brought on record, cannot be accepted.12.The present case, however, is somewhat different from the above cases decided by the Supreme Court. In the present case, respondent Nos.1 and 16 had died before the misfeasance summons was taken out. So that the misfeasance summons itself is being taken out against the heirs and legal representatives of the deceased. The appellant contends that in view of the principle laid down by the Supreme Court that the liability of a director or officer does not abate on his death, a misfeasance summons can be taken out against the heirs and legal representatives of such a deceased director or officer. Kerala High Court, however, in the case of Official Liquidator v. Ramakrishna Iyer, reported in 64 Company Cases, pg. 855, held that under section 543, a proceedings cannot be initiated against the legal representatives of a deceased director. The Kerala High Court has referred to the language of section 543 which contemplates a proceeding being taken out only against director, managing agent, secretary, treasurer, liquidator or officer of the company. The view taken by the Kerala High Court is supported by the decision in the case of Feltoms Executors, 1865-66 1 L.R. Eq. pg. 219, where section 165 of the English Companies Act, 1862, which is similar to our section 543 was considered. Vice Chancellor Kindersley held that the words "compel him to pay" in that section cannot be applied to executors and administrators of a deceased director. The same ratio was applied in the case of In re British Guardian Life Assurance Company, 1880 14 Ch.D. pg. 335.13.The Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No.16 is far beyond the period of limitation under section 543(2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.16.14.In the case of respondent No.1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No.1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No.1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No.1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the persent Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also.15. As regards the other heirs of resondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543(2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No.1. He was throughout aware of the fact one of the sons of respondent No.1 viz., respondent No.9 (in Company Application No.75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No.9 regarding other heirs of respondent No.1. Only in 1988 he made an application to bring on record the other heirs of respondent No.1. Such an application, made 7 years after the knowledge of the death of respondent No.1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.16.In the premises the learned Judge has rightly dismissed the Company Application.
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be governed by the samefurther submits that even though the misfeasance summons is taken out against dead respondents, their heirs can be subsequently brought on record even beyond the period prescribed under section 543(2), because according to him, under section 543(2) only an application is required to be made within the prescribed period. Once an application is made, somebody can be subsequently joined as a party to it. Such an interpretation cannot be accepted. Section 543(2), when it refers to an application, must necessarily refer to an application against a specified person or persons. It cannot be an application in the abstract. Therefore, when the heir of a respondent who wasat the time when the original misfeasance summons was taken out, is brought on record, it is equivalent to taking out a fresh misfeasance summons against the heir. There is no question here of the amendment relating back to the date of the original misfeasance summons against some other parties. Therefore, this contention must be rejected. In view of this position, we do not see how the present Company Application No.75 of 1988 can beSupreme Court, therefore, held that in a proceeding under section 543 of the Companies Act, the death of one of the officers will not result in abatement of his liability. His heirs can be brought on record for the purpose of pursuing the remedy under section 543 as against the estate of the deceased officer or director. In this case, the Supreme Court was concerned with a situation where, during the pendency of misfeasance proceedings one of the directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No.12 (son of deceased respondent No.16 in Company Application No.16 of 1981) that the liability of the deceased respondent No.16 does not survive and hence he as an heir, cannot be brought on record, cannot beKerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No.16 is far beyond the period of limitation under section 543(2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.16.14.In the case of respondent No.1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No.1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No.1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No.1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the persent Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also.15. As regards the other heirs of resondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543(2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No.1. He was throughout aware of the fact one of the sons of respondent No.1 viz., respondent No.9 (in Company Application No.75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No.9 regarding other heirs of respondent No.1. Only in 1988 he made an application to bring on record the other heirs of respondent No.1. Such an application, made 7 years after the knowledge of the death of respondent No.1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.16.In the premises the learned Judge has rightly dismissed the Company Application.
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Harmony Innovation Shipping Ltd Vs. Gupta Coal India Ltd. | the clause which is a comprehensive one, it is London, which is the seat of arbitration. In Videocon Industries Ltd. (supra), as we have analysed earlier, Article 33.1 of the agreement which stipulated that subject to the provisions of Article 34.12, the contract would be governed and interpreted in accordance with the laws of India. Clause 34.12 of the agreement read as follows: "34.12. Venue and law of arbitration agreement.-The venue of sole expert, conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be Kuala Lumpur, Malaysia, and shall be conducted in the English language. Insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. Notwithstanding the provisions of Article 33.1, the arbitration agreement contained in this Article 34 shall be governed by the laws of England." 43. In that context, the Court referred to Section 3 of the English Arbitration Act, 1996 and as has been stated earlier, opined that as per the English law, the seat of arbitration as per the said provision would mean "juridical seat of arbitration" and accordingly opined that principles stated in Bhatia International (supra) would not be applicable.44. In the present case, the agreement stipulates that the contract is to be governed and construed according to the English law. This occurs in the arbitration clause. Mr. Vishwanathan, learned senior counsel, would submit that this part has to be interpreted as a part of "curial law" and not as a "proper law" or "substantive law". It is his submission that it cannot be equated with the seat of arbitration. As we perceive, it forms as a part of the arbitration clause. There is ample indication through various phrases like "arbitration in London to apply", arbitrators are to be the members of the "London Arbitration Association" and the contract "to be governed and construed according to English Law". It is worth noting that there is no other stipulation relating to the applicability of any law to the agreement. There is no other clause anywhere in the contract. That apart, it is also postulated that if the dispute is for an amount less that US $ 50000 then, the arbitration should be conducted in accordance with small claims procedure of the London Maritime Arbitration Association. When the aforesaid stipulations are read and appreciated in the contextual perspective, "the presumed intention" of the parties is clear as crystal that the juridical seat of arbitration would be London. In this context, a passage from Mitsubishi Heavy Industries Ltd. v. Gulf Bank [[1997] 1 Lloyds Rep. 343] is worth reproducing: "It is of course both useful and frequently necessary when construing a clause in a contract to have regard to the overall commercial purpose of the contract in the broad sense of the type and general content, the relationship of the parties and such common commercial purpose as may clearly emerge from such an exercise. However, it does not seem to me to be a proper approach to the construction of a default clause in a commercial contract to seek or purport to elicit some self-contained commercial purpose underlying the clause which is or may be wider than the ordinary or usual construction of the words of each sub-clause will yield." 45. In Cargill International S.A. v. Bangladesh Sugar & Food Industries Corp. [[1998] 1 W.L.R. 461 CA], Potter L.J. balanced the two approaches and said: "In this connection [counsel] has rightly made the point that, when construing the effect of particular words in a commercial contract, it is wrong to put a label on the contract in advance and this to approach the question of construction on the basis of a pre-conception as to the contacts intended effect, with the result that a strained construction is placed on words, clear in themselves, in order to fit them within such pre-conception...On the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract ad the circumstances of the parties, and to consider whether, against that background and I that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result." 46. Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.47. Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.48. Before parting with the case, it is obligatory on our part to state that the Division Bench of the High Court has allowed the petition on the foundation that the Bharat Aluminium Co. case would govern the field and, therefore, the court below had no jurisdiction is not correct. But as has been analysed and discussed by us, even applying the principles laid down in Bhatia International (supra) and scanning the anatomy of the arbitration clause, we have arrived at the conclusion that the courts in India will not have jurisdiction as there is implied exclusion. | 0[ds]20. Addressing the issue of maintainability, this Court referred to the decision in Bhatia International (supra) and took note of the fact that parties have agreed and as is also perceivable from the final partial consent award that the juridical seat or local place of arbitration for the purpose of arbitration initiated under the claimants notice shall be London, England. The parties have also agreed that the hearing of the notice for arbitration may take place at Paris, France, Singapore or any other location the Tribunal considers may be convenient. The Court posed the question whether in the factual matrix, there has been express or implied exclusion of the applicability of Part I of the Act. In that context, the Court referred to paragraph 32 of Bhatia International case and, thereafter, analysed the relevant articles of the PSC to discover the real intention of the parties as to whether the provisions of the Act had been excluded. The Court referred to Articles 32.1 and 32.2 that dealt with the applicable law and language of the contract. Article 32.1 provided that the proper law of the contract would be law of India and under Article 32.2 made a declaration none of the provisions contained in the contract would entitle either the Government or the contractor to exercise the rights, privileges and powers conferred upon it by the contract in a manner which would contravene the laws of India. The Court observed that the basis of controversy involved in the case pertain to analysis of the anatomy of the Article 33.12 which provided that venue of the arbitration shall be London and that the arbitration agreement shall be governed by the laws of England. That apart, the parties had agreed that juridical seat or legal place of arbitration for the purpose initiated under the claimants notice of arbitration would be at London.Elaborating the said facet, the Court discussed the principle that has been stated in Bhatia International (supra) laying that in cases of international commercial arbitrations held out of India, provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its. Coming to the stipulations in the present arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of London Arbitration Association; the contract is to be construed and governed by English Law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in the agreement that any other law would govern the arbitration clause.In that context, the Court referred to Section 3 of the English Arbitration Act, 1996 and as has been stated earlier, opined that as per the English law, the seat of arbitration as per the said provision would mean "juridical seat of arbitration" and accordingly opined that principles stated in Bhatia International (supra) would not be applicable.44. In the present case, the agreement stipulates that the contract is to be governed and construed according to the English law. This occurs in the arbitration clause. Mr. Vishwanathan, learned senior counsel, would submit that this part has to be interpreted as a part of "curial law" and not as a "proper law" or "substantive law". It is his submission that it cannot be equated with the seat of arbitration. As we perceive, it forms as a part of the arbitration clause. There is ample indication through various phrases like "arbitration in London to apply", arbitrators are to be the members of the "London Arbitration Association" and the contract "to be governed and construed according to English Law". It is worth noting that there is no other stipulation relating to the applicability of any law to the agreement. There is no other clause anywhere in the contract. That apart, it is also postulated that if the dispute is for an amount less that US $ 50000 then, the arbitration should be conducted in accordance with small claims procedure of the London Maritime Arbitration Association. When the aforesaid stipulations are read and appreciated in the contextual perspective, "the presumed intention" of the parties is clear as crystal that the juridical seat of arbitration would be London.Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.47. Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.48. Before parting with the case, it is obligatory on our part to state that the Division Bench of the High Court has allowed the petition on the foundation that the Bharat Aluminium Co. case would govern the field and, therefore, the court below had no jurisdiction is not correct. But as has been analysed and discussed by us, even applying the principles laid down in Bhatia International (supra) and scanning the anatomy of the arbitration clause, we have arrived at the conclusion that the courts in India will not have jurisdiction as there is implied exclusion. | 0 | 12,326 | 1,121 | ### 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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the clause which is a comprehensive one, it is London, which is the seat of arbitration. In Videocon Industries Ltd. (supra), as we have analysed earlier, Article 33.1 of the agreement which stipulated that subject to the provisions of Article 34.12, the contract would be governed and interpreted in accordance with the laws of India. Clause 34.12 of the agreement read as follows: "34.12. Venue and law of arbitration agreement.-The venue of sole expert, conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be Kuala Lumpur, Malaysia, and shall be conducted in the English language. Insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. Notwithstanding the provisions of Article 33.1, the arbitration agreement contained in this Article 34 shall be governed by the laws of England." 43. In that context, the Court referred to Section 3 of the English Arbitration Act, 1996 and as has been stated earlier, opined that as per the English law, the seat of arbitration as per the said provision would mean "juridical seat of arbitration" and accordingly opined that principles stated in Bhatia International (supra) would not be applicable.44. In the present case, the agreement stipulates that the contract is to be governed and construed according to the English law. This occurs in the arbitration clause. Mr. Vishwanathan, learned senior counsel, would submit that this part has to be interpreted as a part of "curial law" and not as a "proper law" or "substantive law". It is his submission that it cannot be equated with the seat of arbitration. As we perceive, it forms as a part of the arbitration clause. There is ample indication through various phrases like "arbitration in London to apply", arbitrators are to be the members of the "London Arbitration Association" and the contract "to be governed and construed according to English Law". It is worth noting that there is no other stipulation relating to the applicability of any law to the agreement. There is no other clause anywhere in the contract. That apart, it is also postulated that if the dispute is for an amount less that US $ 50000 then, the arbitration should be conducted in accordance with small claims procedure of the London Maritime Arbitration Association. When the aforesaid stipulations are read and appreciated in the contextual perspective, "the presumed intention" of the parties is clear as crystal that the juridical seat of arbitration would be London. In this context, a passage from Mitsubishi Heavy Industries Ltd. v. Gulf Bank [[1997] 1 Lloyds Rep. 343] is worth reproducing: "It is of course both useful and frequently necessary when construing a clause in a contract to have regard to the overall commercial purpose of the contract in the broad sense of the type and general content, the relationship of the parties and such common commercial purpose as may clearly emerge from such an exercise. However, it does not seem to me to be a proper approach to the construction of a default clause in a commercial contract to seek or purport to elicit some self-contained commercial purpose underlying the clause which is or may be wider than the ordinary or usual construction of the words of each sub-clause will yield." 45. In Cargill International S.A. v. Bangladesh Sugar & Food Industries Corp. [[1998] 1 W.L.R. 461 CA], Potter L.J. balanced the two approaches and said: "In this connection [counsel] has rightly made the point that, when construing the effect of particular words in a commercial contract, it is wrong to put a label on the contract in advance and this to approach the question of construction on the basis of a pre-conception as to the contacts intended effect, with the result that a strained construction is placed on words, clear in themselves, in order to fit them within such pre-conception...On the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract ad the circumstances of the parties, and to consider whether, against that background and I that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result." 46. Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.47. Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.48. Before parting with the case, it is obligatory on our part to state that the Division Bench of the High Court has allowed the petition on the foundation that the Bharat Aluminium Co. case would govern the field and, therefore, the court below had no jurisdiction is not correct. But as has been analysed and discussed by us, even applying the principles laid down in Bhatia International (supra) and scanning the anatomy of the arbitration clause, we have arrived at the conclusion that the courts in India will not have jurisdiction as there is implied exclusion.
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0
### Explanation:
took note of the fact that parties have agreed and as is also perceivable from the final partial consent award that the juridical seat or local place of arbitration for the purpose of arbitration initiated under the claimants notice shall be London, England. The parties have also agreed that the hearing of the notice for arbitration may take place at Paris, France, Singapore or any other location the Tribunal considers may be convenient. The Court posed the question whether in the factual matrix, there has been express or implied exclusion of the applicability of Part I of the Act. In that context, the Court referred to paragraph 32 of Bhatia International case and, thereafter, analysed the relevant articles of the PSC to discover the real intention of the parties as to whether the provisions of the Act had been excluded. The Court referred to Articles 32.1 and 32.2 that dealt with the applicable law and language of the contract. Article 32.1 provided that the proper law of the contract would be law of India and under Article 32.2 made a declaration none of the provisions contained in the contract would entitle either the Government or the contractor to exercise the rights, privileges and powers conferred upon it by the contract in a manner which would contravene the laws of India. The Court observed that the basis of controversy involved in the case pertain to analysis of the anatomy of the Article 33.12 which provided that venue of the arbitration shall be London and that the arbitration agreement shall be governed by the laws of England. That apart, the parties had agreed that juridical seat or legal place of arbitration for the purpose initiated under the claimants notice of arbitration would be at London.Elaborating the said facet, the Court discussed the principle that has been stated in Bhatia International (supra) laying that in cases of international commercial arbitrations held out of India, provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its. Coming to the stipulations in the present arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of London Arbitration Association; the contract is to be construed and governed by English Law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in the agreement that any other law would govern the arbitration clause.In that context, the Court referred to Section 3 of the English Arbitration Act, 1996 and as has been stated earlier, opined that as per the English law, the seat of arbitration as per the said provision would mean "juridical seat of arbitration" and accordingly opined that principles stated in Bhatia International (supra) would not be applicable.44. In the present case, the agreement stipulates that the contract is to be governed and construed according to the English law. This occurs in the arbitration clause. Mr. Vishwanathan, learned senior counsel, would submit that this part has to be interpreted as a part of "curial law" and not as a "proper law" or "substantive law". It is his submission that it cannot be equated with the seat of arbitration. As we perceive, it forms as a part of the arbitration clause. There is ample indication through various phrases like "arbitration in London to apply", arbitrators are to be the members of the "London Arbitration Association" and the contract "to be governed and construed according to English Law". It is worth noting that there is no other stipulation relating to the applicability of any law to the agreement. There is no other clause anywhere in the contract. That apart, it is also postulated that if the dispute is for an amount less that US $ 50000 then, the arbitration should be conducted in accordance with small claims procedure of the London Maritime Arbitration Association. When the aforesaid stipulations are read and appreciated in the contextual perspective, "the presumed intention" of the parties is clear as crystal that the juridical seat of arbitration would be London.Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.47. Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.48. Before parting with the case, it is obligatory on our part to state that the Division Bench of the High Court has allowed the petition on the foundation that the Bharat Aluminium Co. case would govern the field and, therefore, the court below had no jurisdiction is not correct. But as has been analysed and discussed by us, even applying the principles laid down in Bhatia International (supra) and scanning the anatomy of the arbitration clause, we have arrived at the conclusion that the courts in India will not have jurisdiction as there is implied exclusion.
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Commissioner of Income Tax, Bombay North Vs. Chamanlal Mangaldas & Company | up out of the commission an amount upto 1/3 of the commission to enable the distribution of that amount of dividend to the shareholders. On December 28, 1950, a resolution was passed varying the agreement in regard to the payment of commission and adding a proviso to it applicable to years 1950 and 1951 that if the Directors having regard to the results of the working of the Managed Company were of the opinion that a lesser remuneration should be paid to the Managing Agent for any of the two years the Directors shall have the right to fix such lesser remuneration either by way of a lump sum or at a reduced percentage rate and the Managing Agent be bound to accept the same. On March 17, 1951 thee was a supplemental agreement embodying the terms of this resolution and on April 8, 1951, the Directors by a resolution fixed a sum of remuneration at Rs. 4,11,875 instead of the commission calculated at the old rates which worked out at Rs. 5,11,875. In this case also the question was whether that Rs. 1,00,000 was also subject to income-tax. The tribunal decided in favour of the Managing Agent and on a case being stated to the High Court the questions of liability to income-tax were decided in favour of the Managing Agent and the Commissioner of Income Tax has come in appeal to this Court by special leave.3. In both these appeals the question for decision is whether there was a voluntary relinquishment on the part of the Managing Agents of a part of the income, i.e. Rs. 1,00,000 which was the difference in both cases between the commission payable under the original agreements and the commission calculated on the modified agreements. In these appeals, as in C.A. 145 of 1958 (Since reported as Commr. of Income Tax Bombay North v. Harivallabhdas Kalidas and Co., AIR 1960 SC 703 ) which we have decided today, the question is one of construction of the terms of the contract and the question has to be determined on that basis.In both these appeals the clause in regard to commission has to be read as one integrated whole. In C. A. 162 of 1958 the commission was payable on the sale price of all cotton yearn and cloth sold and on the sale proceeds of all material yarn and fabrics manufactured from other fibres and sold by the Company and 10 per cent on the net profits from ginning or pressing operations.Read as an integrated whole it means that the right to receive the commission was at the end of the year because (1)the commission was payable on all cotton yarn and cloth manufactured and sold by the Managed Company so also the commission on yarn etc. manufactured by the Managed Company from other fibres and sold by the Managed Company and all sales could only be determined at the end of the year;(2) the percentage on total profits could only be determined at the end of the year; (3) the liability to contribute towards the dividends also could only be determined at the end of the year. This is supported by the entry in the books of the Managed Company which was made on December 31, 1950, which shows that the right of the Managing Agents to receive commission at the rate stipulated in the agreement calculated on all the sales of the year was Rs. 2,05,575 but the Directors decided that they should be paid Rs. 1,05,575 and that was the amount credited to their account. This supports the contention of the Managing Agents that their right to receive the commission or its accrual was at the end of the accounting year when all the sales were and could be added up and the accounts were made up. Thus the amount which accrued or which they were entitled to receive was the latter sum i.e. Rs. 1,05,575 and not what would have been payable and there been no variations in and modification of the agreement.4. In C. A. 210 of 1958 under Cl. 3 of the Managing Agency Agreement containing the terms as to commission was also to be determined at the end of the year.The agreement was one integrated and indivisible whole. In this appeal the commission was at 3 per cent on the sale of all yarn and cloth manufactured by the Managed Company and the total commission was only determinable and would accrue when the year was over. Further the right to receive the commission arose after the profits were determined because only then could it be decided as to what amount, if any, the Managing Agents would have to contribute under the proviso to Cl. 3.5. Counsel for the appellant relied on the entry in the books of account of the Company where the words used are "amount accrued Rs. 5,11,875", but this entry must be read as a whole and it shows that the amount which the Managing Agents were entitled to receive was Rs. 4,11,875.No doubt in this case the amounts of commission were credited every six months which only means that as an interim arrangement the accounts of all sales were made up at the end of six months also. But this would not affect the construction of the clause containing the terms for payment of commission nor the reduction made therein as a result of the modified arrangement.The amount which would arise or accrue and the Managing Agent would have the right to receive cannot be affected by the manner in which the entry was made.6. Therefore, in both these appeals the amount liable to income-tax would be the amount which the respective Managing Agents were entitled to receive as commission ; for, that would be the amount which would accrue or arise in each case and the amounts they were entitled to were Rs. 1,00,000 less than what they would have received had the terms of the Managing Agency Agreements not been varied. | 0[ds]5. Counsel for the appellant relied on the entry in the books of account of the Company where the words used are "amount accrued Rs. 5,11,875", but this entry must be read as a whole and it shows that the amount which the Managing Agents were entitled to receive was Rs.doubt in this case the amounts of commission were credited every six months which only means that as an interim arrangement the accounts of all sales were made up at the end of six months also. But this would not affect the construction of the clause containing the terms for payment of commission nor the reduction made therein as a result of the modified arrangement.The amount which would arise or accrue and the Managing Agent would have the right to receive cannot be affected by the manner in which the entry was made.6. Therefore, in both these appeals the amount liable towould be the amount which the respective Managing Agents were entitled to receive as commission ; for, that would be the amount which would accrue or arise in each case and the amounts they were entitled to were Rs. 1,00,000 less than what they would have received had the terms of the Managing Agency Agreements not been varied. | 0 | 2,022 | 225 | ### 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:
up out of the commission an amount upto 1/3 of the commission to enable the distribution of that amount of dividend to the shareholders. On December 28, 1950, a resolution was passed varying the agreement in regard to the payment of commission and adding a proviso to it applicable to years 1950 and 1951 that if the Directors having regard to the results of the working of the Managed Company were of the opinion that a lesser remuneration should be paid to the Managing Agent for any of the two years the Directors shall have the right to fix such lesser remuneration either by way of a lump sum or at a reduced percentage rate and the Managing Agent be bound to accept the same. On March 17, 1951 thee was a supplemental agreement embodying the terms of this resolution and on April 8, 1951, the Directors by a resolution fixed a sum of remuneration at Rs. 4,11,875 instead of the commission calculated at the old rates which worked out at Rs. 5,11,875. In this case also the question was whether that Rs. 1,00,000 was also subject to income-tax. The tribunal decided in favour of the Managing Agent and on a case being stated to the High Court the questions of liability to income-tax were decided in favour of the Managing Agent and the Commissioner of Income Tax has come in appeal to this Court by special leave.3. In both these appeals the question for decision is whether there was a voluntary relinquishment on the part of the Managing Agents of a part of the income, i.e. Rs. 1,00,000 which was the difference in both cases between the commission payable under the original agreements and the commission calculated on the modified agreements. In these appeals, as in C.A. 145 of 1958 (Since reported as Commr. of Income Tax Bombay North v. Harivallabhdas Kalidas and Co., AIR 1960 SC 703 ) which we have decided today, the question is one of construction of the terms of the contract and the question has to be determined on that basis.In both these appeals the clause in regard to commission has to be read as one integrated whole. In C. A. 162 of 1958 the commission was payable on the sale price of all cotton yearn and cloth sold and on the sale proceeds of all material yarn and fabrics manufactured from other fibres and sold by the Company and 10 per cent on the net profits from ginning or pressing operations.Read as an integrated whole it means that the right to receive the commission was at the end of the year because (1)the commission was payable on all cotton yarn and cloth manufactured and sold by the Managed Company so also the commission on yarn etc. manufactured by the Managed Company from other fibres and sold by the Managed Company and all sales could only be determined at the end of the year;(2) the percentage on total profits could only be determined at the end of the year; (3) the liability to contribute towards the dividends also could only be determined at the end of the year. This is supported by the entry in the books of the Managed Company which was made on December 31, 1950, which shows that the right of the Managing Agents to receive commission at the rate stipulated in the agreement calculated on all the sales of the year was Rs. 2,05,575 but the Directors decided that they should be paid Rs. 1,05,575 and that was the amount credited to their account. This supports the contention of the Managing Agents that their right to receive the commission or its accrual was at the end of the accounting year when all the sales were and could be added up and the accounts were made up. Thus the amount which accrued or which they were entitled to receive was the latter sum i.e. Rs. 1,05,575 and not what would have been payable and there been no variations in and modification of the agreement.4. In C. A. 210 of 1958 under Cl. 3 of the Managing Agency Agreement containing the terms as to commission was also to be determined at the end of the year.The agreement was one integrated and indivisible whole. In this appeal the commission was at 3 per cent on the sale of all yarn and cloth manufactured by the Managed Company and the total commission was only determinable and would accrue when the year was over. Further the right to receive the commission arose after the profits were determined because only then could it be decided as to what amount, if any, the Managing Agents would have to contribute under the proviso to Cl. 3.5. Counsel for the appellant relied on the entry in the books of account of the Company where the words used are "amount accrued Rs. 5,11,875", but this entry must be read as a whole and it shows that the amount which the Managing Agents were entitled to receive was Rs. 4,11,875.No doubt in this case the amounts of commission were credited every six months which only means that as an interim arrangement the accounts of all sales were made up at the end of six months also. But this would not affect the construction of the clause containing the terms for payment of commission nor the reduction made therein as a result of the modified arrangement.The amount which would arise or accrue and the Managing Agent would have the right to receive cannot be affected by the manner in which the entry was made.6. Therefore, in both these appeals the amount liable to income-tax would be the amount which the respective Managing Agents were entitled to receive as commission ; for, that would be the amount which would accrue or arise in each case and the amounts they were entitled to were Rs. 1,00,000 less than what they would have received had the terms of the Managing Agency Agreements not been varied.
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0
### Explanation:
5. Counsel for the appellant relied on the entry in the books of account of the Company where the words used are "amount accrued Rs. 5,11,875", but this entry must be read as a whole and it shows that the amount which the Managing Agents were entitled to receive was Rs.doubt in this case the amounts of commission were credited every six months which only means that as an interim arrangement the accounts of all sales were made up at the end of six months also. But this would not affect the construction of the clause containing the terms for payment of commission nor the reduction made therein as a result of the modified arrangement.The amount which would arise or accrue and the Managing Agent would have the right to receive cannot be affected by the manner in which the entry was made.6. Therefore, in both these appeals the amount liable towould be the amount which the respective Managing Agents were entitled to receive as commission ; for, that would be the amount which would accrue or arise in each case and the amounts they were entitled to were Rs. 1,00,000 less than what they would have received had the terms of the Managing Agency Agreements not been varied.
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Commissioner Of Income-Tax, Bangalore Vs. Shri D. C. Shah | income of the Hindu Undivided Family. In M. D. Dhanwatey v. Commissioner of Income-tax, 68 ITR 285=(AIR 1968 SC 682 ) the facts were parallel to the facts in V. D. Dhanwateys case, 68 ITR 365 =(AIR 1968 SC 683 ) (supra) and the salary received by the Karta of the Hindu Undivided Family was treated as the income of the family. 4. In S. R. M. CT. PL. Palaniappa Chettiar v. Commissioner of Income-tax, 68 ITR 221 =(AIR 1968 SC 678 ) the material facts were different. The karta of a Hindu Undivided Family acquired 90 out of 300 shares in a transport company with the funds of the family. In course of time he became the Managing Director of the Company. As Managing Director the karta was entitled to salary and commission on the net profits of the company, and was entrusted with control over the financial and administrative affairs of the company. The only qualification under the Articles of Association for the office of a Director was the holding of not less than 25 shares in his own right. It was found that the shares were acquired by the family not with the object that the karta should become the Managing Director, but in the ordinary course of investment and there was no real connection between the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company. It was held therefore that the remuneration of the Managing Director was not earned on accounts of any detriment to the joint family assets and the amounts received by the karta as Managing Directors remuneration, commission and sitting fee were not assessable as the income of the Hindu Undivided Family. 5. In P. N. Krishna Iyer v. Commissioner of Income-tax Kerala, Civil Appeal No. 1997 of 1966, D/- 3-9-1968 = (AIR 1969 SC 893 ) the principle laid down in V. D. Dhanwateys case 68 ITR 365 = (AIR 1968 SC 683 ) (supra), was applied. It was held that the remuneration received by the assessee from the company of which he was the Managing Director together with commission and sitting fee, should be included in the assessment of the Hindu Undivided Family. It was pointed out that the shares which qualified the assessee to become a member of the company were purchased with the aid of the joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the company originally belonged to the joint family and were made available to the company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere fact that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family and the proximity of the connection between the investment from the joint family funds and the remuneration paid. Applying the principle laid down in V. D. Dhanwateys case, 68 ITR 365 = (AIR 1968 SC 683 ) (supra) it was held that the tribunal was justified in holding that the income from the salary, commission or sitting fees obtained by the assessee did not represent his individual income but was the income of the Hindu Undivided Family of which he was the karta. 6. In Commissioner of Income-tax Mysore v. G. V. Dhakappa, Civil Appeal No. 713 of 1965, D/- 23-7-1968 (SC) the principle laid down in V. D. Dhanwateys case, 68 ITR 365 =(AIR 1968 SC 683 ) (supra) was applied again. It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G. V. Dhakappa cannot be treated as the income of the Hindu Undivided Family. 7. In our opinion, the present case falls within the principle laid down by this Court in S.R.M. Ct. PL. Palaniappa Chettiars case, 68 ITR 221 =(AIR 1968 SC 678 ) (supra). It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on. Clauses 9 and 10 of the Partnership deed dated 5th June, 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah. In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner. After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 195960. Clause 15 of the partnership deed provided for such an appointment. A reading of Clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm. It should also be noticed that no other partner was paid any salary. Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D.C. Shah. It follows that the remuneration of Shri D.C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D.C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family. | 0[ds]7. In our opinion, the present case falls within the principle laid down by this Court in S.R.M. Ct. PL. Palaniappa Chettiars case, 68 ITR 221 =(AIR 1968 SC 678 ) (supra). It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on. Clauses 9 and 10 of the Partnership deed dated 5th June, 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah. In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner. After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 195960. Clause 15 of the partnership deed provided for such an appointment. A reading of Clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm. It should also be noticed that no other partner was paid any salary. Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D.C. Shah. It follows that the remuneration of Shri D.C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D.C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family. | 0 | 2,481 | 319 | ### 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:
income of the Hindu Undivided Family. In M. D. Dhanwatey v. Commissioner of Income-tax, 68 ITR 285=(AIR 1968 SC 682 ) the facts were parallel to the facts in V. D. Dhanwateys case, 68 ITR 365 =(AIR 1968 SC 683 ) (supra) and the salary received by the Karta of the Hindu Undivided Family was treated as the income of the family. 4. In S. R. M. CT. PL. Palaniappa Chettiar v. Commissioner of Income-tax, 68 ITR 221 =(AIR 1968 SC 678 ) the material facts were different. The karta of a Hindu Undivided Family acquired 90 out of 300 shares in a transport company with the funds of the family. In course of time he became the Managing Director of the Company. As Managing Director the karta was entitled to salary and commission on the net profits of the company, and was entrusted with control over the financial and administrative affairs of the company. The only qualification under the Articles of Association for the office of a Director was the holding of not less than 25 shares in his own right. It was found that the shares were acquired by the family not with the object that the karta should become the Managing Director, but in the ordinary course of investment and there was no real connection between the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company. It was held therefore that the remuneration of the Managing Director was not earned on accounts of any detriment to the joint family assets and the amounts received by the karta as Managing Directors remuneration, commission and sitting fee were not assessable as the income of the Hindu Undivided Family. 5. In P. N. Krishna Iyer v. Commissioner of Income-tax Kerala, Civil Appeal No. 1997 of 1966, D/- 3-9-1968 = (AIR 1969 SC 893 ) the principle laid down in V. D. Dhanwateys case 68 ITR 365 = (AIR 1968 SC 683 ) (supra), was applied. It was held that the remuneration received by the assessee from the company of which he was the Managing Director together with commission and sitting fee, should be included in the assessment of the Hindu Undivided Family. It was pointed out that the shares which qualified the assessee to become a member of the company were purchased with the aid of the joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the company originally belonged to the joint family and were made available to the company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere fact that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family and the proximity of the connection between the investment from the joint family funds and the remuneration paid. Applying the principle laid down in V. D. Dhanwateys case, 68 ITR 365 = (AIR 1968 SC 683 ) (supra) it was held that the tribunal was justified in holding that the income from the salary, commission or sitting fees obtained by the assessee did not represent his individual income but was the income of the Hindu Undivided Family of which he was the karta. 6. In Commissioner of Income-tax Mysore v. G. V. Dhakappa, Civil Appeal No. 713 of 1965, D/- 23-7-1968 (SC) the principle laid down in V. D. Dhanwateys case, 68 ITR 365 =(AIR 1968 SC 683 ) (supra) was applied again. It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G. V. Dhakappa cannot be treated as the income of the Hindu Undivided Family. 7. In our opinion, the present case falls within the principle laid down by this Court in S.R.M. Ct. PL. Palaniappa Chettiars case, 68 ITR 221 =(AIR 1968 SC 678 ) (supra). It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on. Clauses 9 and 10 of the Partnership deed dated 5th June, 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah. In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner. After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 195960. Clause 15 of the partnership deed provided for such an appointment. A reading of Clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm. It should also be noticed that no other partner was paid any salary. Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D.C. Shah. It follows that the remuneration of Shri D.C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D.C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family.
### Response:
0
### Explanation:
7. In our opinion, the present case falls within the principle laid down by this Court in S.R.M. Ct. PL. Palaniappa Chettiars case, 68 ITR 221 =(AIR 1968 SC 678 ) (supra). It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on. Clauses 9 and 10 of the Partnership deed dated 5th June, 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah. In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner. After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 195960. Clause 15 of the partnership deed provided for such an appointment. A reading of Clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm. It should also be noticed that no other partner was paid any salary. Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D.C. Shah. It follows that the remuneration of Shri D.C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D.C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family.
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The Additional Commnr.Of C.Taxes,Bangalo Vs. Ayili Stone Industries Etc.Etc | One of the most important reasons for saying so is that in all such cases, particularly under the excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture."25. Thereafter, the Court proceeded to deal with the process undertaken by the assessee and in that context stated:-"In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80-IA of the Income Tax Act."26. The Court referred to the decision in CIT v. N.C. Budharaja & Co., 1994 Supp (1) SCC 280 and ruled thus:-"25. Applying the above tests laid down by this Court in Budharaja case to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only is there manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondent assessees did constitute manufacture or production in terms of Section 80-IA of the Income Tax Act, 1961. 26. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely, that the activity undertaken by the respondents herein is not manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job-workers and the activity undertaken by them has been recognised by various government authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80-IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax, etc. because the activity did not constitute manufacture."27. We have reproduced in extenso from the aforesaid authority, though the exposition of law arose under a different enactment. The three-Judge Bench has explained the principle stated in Rajasthan SEBs case as well as in Aman Marble (supra). In the case at hand, though the High Court in the impugned order posed the question correctly and placed reliance on Aman Marble (supra), yet it has not correctly applied the principle in the correct perspective. In Aman Marble (supra) the Court has held that it was not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in a manufacture of goods. The decision in Foredge Granite (supra) had been restricted to the concept of polished granite block. The revisional authority, as we perceive, has applied the test of separate and distinct commercial product that comes into existence from granite stones and for the said purpose, it has relied on the pronouncement in Goa Granites (supra). We have copiously referred to Goa Granites (supra). It has drawn a distinction between the slabs and tiles. Entry 17(i) of Part S of the Act deals with polished granites, unpolished granites and chips. The tiles come under Entry 8 in part T of the second schedule to the Act. At Entry 8(iv), the tiles are covered. It is noticeable that in Entry 8, certain tiles have been classified under Entry 8(i) (ii) and (iii) of Part T. Under Entry 8(iv) further tiles are classified. It is as under:-"(iv) Other tiles not covered by items 1-4-88 to 31-3-96 Fifteen percent (i), (ii) and (iii) above 1-4-96 to 31-3-98 1-4-98 to 31-3-01 1-4-01 to 31-03-02 1-4-02 to 31-5-03 From 1-6-2003Twelve percent Ten percent Twelve percent Fifteen percent (Sixteen percent) "28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.29. In view of the aforesaid, | 1[ds]28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached. | 1 | 7,416 | 261 | ### 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:
One of the most important reasons for saying so is that in all such cases, particularly under the excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture."25. Thereafter, the Court proceeded to deal with the process undertaken by the assessee and in that context stated:-"In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80-IA of the Income Tax Act."26. The Court referred to the decision in CIT v. N.C. Budharaja & Co., 1994 Supp (1) SCC 280 and ruled thus:-"25. Applying the above tests laid down by this Court in Budharaja case to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only is there manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondent assessees did constitute manufacture or production in terms of Section 80-IA of the Income Tax Act, 1961. 26. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely, that the activity undertaken by the respondents herein is not manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job-workers and the activity undertaken by them has been recognised by various government authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80-IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax, etc. because the activity did not constitute manufacture."27. We have reproduced in extenso from the aforesaid authority, though the exposition of law arose under a different enactment. The three-Judge Bench has explained the principle stated in Rajasthan SEBs case as well as in Aman Marble (supra). In the case at hand, though the High Court in the impugned order posed the question correctly and placed reliance on Aman Marble (supra), yet it has not correctly applied the principle in the correct perspective. In Aman Marble (supra) the Court has held that it was not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in a manufacture of goods. The decision in Foredge Granite (supra) had been restricted to the concept of polished granite block. The revisional authority, as we perceive, has applied the test of separate and distinct commercial product that comes into existence from granite stones and for the said purpose, it has relied on the pronouncement in Goa Granites (supra). We have copiously referred to Goa Granites (supra). It has drawn a distinction between the slabs and tiles. Entry 17(i) of Part S of the Act deals with polished granites, unpolished granites and chips. The tiles come under Entry 8 in part T of the second schedule to the Act. At Entry 8(iv), the tiles are covered. It is noticeable that in Entry 8, certain tiles have been classified under Entry 8(i) (ii) and (iii) of Part T. Under Entry 8(iv) further tiles are classified. It is as under:-"(iv) Other tiles not covered by items 1-4-88 to 31-3-96 Fifteen percent (i), (ii) and (iii) above 1-4-96 to 31-3-98 1-4-98 to 31-3-01 1-4-01 to 31-03-02 1-4-02 to 31-5-03 From 1-6-2003Twelve percent Ten percent Twelve percent Fifteen percent (Sixteen percent) "28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.29. In view of the aforesaid,
### Response:
1
### Explanation:
28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.
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Jainarain Ram Lundia Vs. Surajmull Sagarmull & Others | other person does not join the agreement. This would be the position in law apart from any rule of equity. The proposition laid down by Sir George Jessel goes much further than this. He speaks of two persons executing a deed on the faith that a third will do so and if this is known to the other party, equity will refuse to fasten any liability on the executing parties if the third party does not join in the act. It has been pointed out in the judgments of the various law Lords who decided the case of Naas v. Westminster Bank, Ltd. (6), that there is much that is indefinite and vague in the words of the learned Master of Rolls. The word faith cannot be taken to refer to a mere subjective expectation or mention in the mind of a particular party. It must be a matter not of conjecture but of positive proof; and in order that a relief might be claimed in equity, it is necessary to prove that substantial injustice would result if the deed is enforced unconditionally against the executing parties. Relief, therefore, could be given in those cases where the strict enforcement of law would lead to the executing parties being saddled with heavier liability than they otherwise would incur or would make the transaction substantially different from what it would have been if all the parties had jointed.The law being this fairly well-settled, it is difficult to see how on the finding concurrently arrived at by both the Courts below, the Appellants can make out a case which would enable them to call into aid the principles mentioned above. 14. It cannot be disputed that the Plaintiffs all along desired to secure the whole lot of shares that was held by the Pedrona group and it was certainly to their interest to do so, as otherwise the cause of dissension would not be entirely removed. The three Defendants on their part, when they signed the letter dated the 28th of December, 1940, addressed to Himatsingka, agreed to sell all the 350 shares including the shares held by Badri Prosad. 15. Whether Gobordhan Das though rightly or wrongly that he had authorities to dispose of the shares standing in the name of his brother as well, is not material for our present purpose. All that we can say is this that there is nothing in this letter which would show that it was the intention of the signatories that they would sell their shares and interests to the Plaintiffs if and only if Badri Prosad sold his. Badri Prosad was not in the picture at all and although Gobordhan Das Apparently agreed to sell his shares as well, there is no evidence of any understanding, either express or implied, even amongst the Defendants inter se that unless Badri Prosad actually came and joined the agreement, the contract would not be perfect or complete. None of the Defendants or even their Solicitor was examined as a witness in this case and no questions on this point were put to the Plaintiffs witness during their cross-examination. The letter of 28th December, 1940, if it shows anything shows unmistakably that the vendors were anxious to dispose of their shares by any means possible and they did not care whether shares were purchased by Khaitans or anybody else. The letter of both the Appellants written to Himatsingka on the 5th of January, 1941, practically clinches the matter and proves conclusively that the promise to sell their shares and interests in the business was not in any way dependent upon anybody elses joining with them in the transaction. Thus there was no intention on the part of the Defendants that the contract would not be binding unless Badri Prosad became a party to it and there has been no suggestion made on behalf of the Appellants either here or in the Courts below that any injustice would be done to them if they are compelled to perform the agreement which they made. On the other hand, as the trial Judge has rightly observed it would be doing very great injustice to the Plaintiffs if the Defendants are allowed to resile from the contract. The second contention of the Appellants must, therefore fail.The third point raised by the Appellants does not appear to us to be at all sound. The argument is that the contract being joint and indivisible, it was not open to the Plaintiffs to give up one of the Defendants and proceed against the other two. In our opinion, section 43 of the Indian Contract Act is a complete answer to this contention. Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. As the Plaintiffs in this case prayed ultimately for specific performance of a part of the contract in the manner contemplated by section 15 of the specific Relief Act and expressed their readiness to pay the entire consideration for 350 shares, the Appellant are not prejudiced in any way. 16. The fourth and the last point is not of any substance. The subject- matter of contract in the present case consists of certain shares in a private limited company and a fractional interest in a partnership business. Illustration (iii) under clause (c) of section 12 of the Specific Relief Act clearly shows that when shares are limited in number and are not ordinarily available in the market, it is quite proper to grant a decree for specific performance of a contract for the sale of such shares. Specific performance is undoubtedly a discretionary remedy but we are totally unable to say that the discretion has been wrongly exercised in the present case by the Courts below. | 0[ds]Sir Tek Chand relies upon the decision of the House of Lords in the well-known case of Hussey v. Horne-Payne.We do not think that the principle of law enunciated in that case, and about the correctness of which there could hardly be any doubt, is of any assistance to the appellants.9. This decision cannot possibly help the Appellant. Here we have not to spell out a contract from a bundle of letters. According to the evidence of Bhuramull which stands uncontradicted and has been accepted as correct by both the Courts below, there was an oral agreement finally concluded between the parties, acting through their representatives at the interview in Calcutta on the 1st of January, 1941. The terms of this contract, according to the Plaintiffs, are those set out in the latter of P. D. Himatsingka and Co. dated the 2nd of January, 1941, which were confirmed by Khaitan and Co. on behalf of the Plaintiffs by their letter addressed to Himatsingka on the day following. What Sir Tek Chand attempts to show is, that by this letter Khaitan and Co. wanted to introduce certain new terms in the contract which were not mentioned in the latter of P. D. Himatsingka. There were further correspondence and negotiations between the parties since then and as the parties were not ad idem on these terms no concluded contract could possibly come into existence.10. Then followed eight clauses which set out the different terms upon which the parties, according to this letter, had already come to an agreement. It is admitted that there are two new matters in this letter which did not find a place in the latter of P. D. Himatsingka and Co. and with regard to which there was no agreement between the parties before. One of these relates to the claim against Mirless Watson and Co. and the other to the liability of the parties regarding the stamp duty to be paid on the transfer deeds. Regarding the claims against Mirless Watson and Co., it appears from a letter of Himatsingka, dated 8th January, 1941, that although there was no express reference to this matter in any previous negotiation, it was implied in the agreement that the purchases would get all the benefits of the vendors appertaining to the shares and interest transferred by them and consequently the benefits of this claim also would go to be purchasers. This point, therefore, is of no importance and it cannot be said that the parties were not ad idem on this point. As regards stamp duty, it is not disputed that there was no previous talk between the parties on this point, though ordinarily and as a matter of law in case of transfer of shares it is the vendor by whom the stamp duty is payable. It must be held on the evidence adduced in this case that on the question of stamp duty there was no agreement between the parties on the 1st stamp duty there was no agreement between the parties on the 1st of January, 1941, and they did not intend to make it a term of the bargain at all. Khaitan and Co. were apparently labouring under a mistake when they stated in the latter mentioned above that it was already arranged that the stamp duty was payable by the clients of Messrs. Himatsingka.This being the position, the question a arises whether or not there was a concluded agreement between the parties on the 1st of January, 1941.On our opinion, the answer would clearly be in the affirmative.In Hussey v. Horne-Payne (1), it was established by oral evidence as well as from the subsequent correspondence between the parties that all the terms of the contract were not contained in the two letters on the basis of which the action was brought. The parties intended that the instalments in which the purchase money was to be paid should be an essential part of the bargain and yet there was no agreement on this point either prior or subsequent to the two letters upon which the contract was founded. In the case before us, it must be taken that nothing was proposed or mentioned at the time when the contract was entered into, regarding the payment of stamp duty on the deeds of transfer. It was not an essential part of the bargain nor was it intended to be so. There was agreement between the parties on the terms which are necessary in law to constitute a contract of sale and there was agreement on other terms as well which they themselves considered material. The question of stamp duty was not one of the terms of the agreement and if Khaitan and Co. mistakenly and quite unnecessarily introduced this matter in the latter referred to above, that cannot affect the completed agreement already arrived at.If after a contract is concluded and its terms settled, further negotiations are started with regard to new matters, that would not prevent full effect being given to the contract already existing, unless it is established as a fact that the contract was rescinded or varied with the consent of both the parties or that both parties treated it as incomplete and inconclusive. Once completed, the contract can be got rid of only with the concurrence of both parties. Sir Tek Chand did not make any serious attempt to show that the contract which was entered into on the 1st of January 1941, was rescinded or re-opened with the consent of both parties subsequently.11. The material evidence, which has been discussed fully in the judgment of Gental, J., clearly proves that Messrs. Khaitans letters of 2nd/3rd January, 1941, did not affect in any way the agreement in suit. Himatsingka, by his letter of 8th January, 1941, definitely told his clients that under the law the seller would be liable to pay the stamp duty on transfer deeds and as the matter was not discussed with the purchasers at any previous stage, it would be difficult to realise the costs from the latter. The subsequent refusal of Defendant No. 1 to comply with the agreement was not on the ground that the agreement had terminated by reason of any new term being sought to be introduced by the purchasers, and there is clear evidence to show that in spite of the letter of Messrs. Khaitan and Co. the Defendants Nos. 3 and 4 strongly insisted upon the contract being carried out.This view seems manifestly unsound and has been expressly dissented from in later cases; vide Bellamy v. Debenham (3) and Perry v. Suffields (4). As a matter of fact, the decision is based not on the ground of the contract being incomplete and not final, but on the ground of some equitable estoppel which was deemed to arise by reason of the conduct of the Plaintiff. Even assuming the decision to be sound, the Appellants would get title comfort from it. Here the new term sought to be introduced by the Plaintiffs Solicitor was only done under a mistake but it had no effect whatsoever in altering the conduct or position of the Defendants in any way. In these circumstances, the first contention raised by Sir Tek Chand cannot possibly succeed.13. In a recent pronouncement of the House of Lords in Naas v. Westminister Bank, Ltd. (6), it was held that these observations of Sir George Jessel could not rank higher than obiter and that the law stated therein is too broad and general to be of any service. It is to be noted that Sir George Jessel in this passage speaks of an equitable principle. When parties enter into an agreement on the clear understanding that some other person should be a party to it, obviously no perfected contract is possible so long as this other person does not join the agreement. This would be the position in law apart from any rule of equity. The proposition laid down by Sir George Jessel goes much further than this. He speaks of two persons executing a deed on the faith that a third will do so and if this is known to the other party, equity will refuse to fasten any liability on the executing parties if the third party does not join in the act. It has been pointed out in the judgments of the various law Lords who decided the case of Naas v. Westminster Bank, Ltd. (6), that there is much that is indefinite and vague in the words of the learned Master of Rolls. The word faith cannot be taken to refer to a mere subjective expectation or mention in the mind of a particular party. It must be a matter not of conjecture but of positive proof; and in order that a relief might be claimed in equity, it is necessary to prove that substantial injustice would result if the deed is enforced unconditionally against the executing parties. Relief, therefore, could be given in those cases where the strict enforcement of law would lead to the executing parties being saddled with heavier liability than they otherwise would incur or would make the transaction substantially different from what it would have been if all the parties had jointed.The law being this fairly well-settled, it is difficult to see how on the finding concurrently arrived at by both the Courts below, the Appellants can make out a case which would enable them to call into aid the principles mentioned above.14. It cannot be disputed that the Plaintiffs all along desired to secure the whole lot of shares that was held by the Pedrona group and it was certainly to their interest to do so, as otherwise the cause of dissension would not be entirely removed. The three Defendants on their part, when they signed the letter dated the 28th of December, 1940, addressed to Himatsingka, agreed to sell all the 350 shares including the shares held by Badri Prosad.15. Whether Gobordhan Das though rightly or wrongly that he had authorities to dispose of the shares standing in the name of his brother as well, is not material for our present purpose. All that we can say is this that there is nothing in this letter which would show that it was the intention of the signatories that they would sell their shares and interests to the Plaintiffs if and only if Badri Prosad sold his. Badri Prosad was not in the picture at all and although Gobordhan Das Apparently agreed to sell his shares as well, there is no evidence of any understanding, either express or implied, even amongst the Defendants inter se that unless Badri Prosad actually came and joined the agreement, the contract would not be perfect or complete. None of the Defendants or even their Solicitor was examined as a witness in this case and no questions on this point were put to the Plaintiffs witness during their cross-examination. The letter of 28th December, 1940, if it shows anything shows unmistakably that the vendors were anxious to dispose of their shares by any means possible and they did not care whether shares were purchased by Khaitans or anybody else. The letter of both the Appellants written to Himatsingka on the 5th of January, 1941, practically clinches the matter and proves conclusively that the promise to sell their shares and interests in the business was not in any way dependent upon anybody elses joining with them in the transaction. Thus there was no intention on the part of the Defendants that the contract would not be binding unless Badri Prosad became a party to it and there has been no suggestion made on behalf of the Appellants either here or in the Courts below that any injustice would be done to them if they are compelled to perform the agreement which they made. On the other hand, as the trial Judge has rightly observed it would be doing very great injustice to the Plaintiffs if the Defendants are allowed to resile from the contract. The second contention of the Appellants must, therefore fail.The third point raised by the Appellants does not appear to us to be at all sound. The argument is that the contract being joint and indivisible, it was not open to the Plaintiffs to give up one of the Defendants and proceed against the other two. In our opinion, section 43 of the Indian Contract Act is a complete answer to this contention. Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. As the Plaintiffs in this case prayed ultimately for specific performance of a part of the contract in the manner contemplated by section 15 of the specific Relief Act and expressed their readiness to pay the entire consideration for 350 shares, the Appellant are not prejudiced in any way.16. The fourth and the last point is not of any substance. The subject- matter of contract in the present case consists of certain shares in a private limited company and a fractional interest in a partnership business. Illustration (iii) under clause (c) of section 12 of the Specific Relief Act clearly shows that when shares are limited in number and are not ordinarily available in the market, it is quite proper to grant a decree for specific performance of a contract for the sale of such shares. Specific performance is undoubtedly a discretionary remedy but we are totally unable to say that the discretion has been wrongly exercised in the present case by the Courts below. | 0 | 6,204 | 2,470 | ### 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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other person does not join the agreement. This would be the position in law apart from any rule of equity. The proposition laid down by Sir George Jessel goes much further than this. He speaks of two persons executing a deed on the faith that a third will do so and if this is known to the other party, equity will refuse to fasten any liability on the executing parties if the third party does not join in the act. It has been pointed out in the judgments of the various law Lords who decided the case of Naas v. Westminster Bank, Ltd. (6), that there is much that is indefinite and vague in the words of the learned Master of Rolls. The word faith cannot be taken to refer to a mere subjective expectation or mention in the mind of a particular party. It must be a matter not of conjecture but of positive proof; and in order that a relief might be claimed in equity, it is necessary to prove that substantial injustice would result if the deed is enforced unconditionally against the executing parties. Relief, therefore, could be given in those cases where the strict enforcement of law would lead to the executing parties being saddled with heavier liability than they otherwise would incur or would make the transaction substantially different from what it would have been if all the parties had jointed.The law being this fairly well-settled, it is difficult to see how on the finding concurrently arrived at by both the Courts below, the Appellants can make out a case which would enable them to call into aid the principles mentioned above. 14. It cannot be disputed that the Plaintiffs all along desired to secure the whole lot of shares that was held by the Pedrona group and it was certainly to their interest to do so, as otherwise the cause of dissension would not be entirely removed. The three Defendants on their part, when they signed the letter dated the 28th of December, 1940, addressed to Himatsingka, agreed to sell all the 350 shares including the shares held by Badri Prosad. 15. Whether Gobordhan Das though rightly or wrongly that he had authorities to dispose of the shares standing in the name of his brother as well, is not material for our present purpose. All that we can say is this that there is nothing in this letter which would show that it was the intention of the signatories that they would sell their shares and interests to the Plaintiffs if and only if Badri Prosad sold his. Badri Prosad was not in the picture at all and although Gobordhan Das Apparently agreed to sell his shares as well, there is no evidence of any understanding, either express or implied, even amongst the Defendants inter se that unless Badri Prosad actually came and joined the agreement, the contract would not be perfect or complete. None of the Defendants or even their Solicitor was examined as a witness in this case and no questions on this point were put to the Plaintiffs witness during their cross-examination. The letter of 28th December, 1940, if it shows anything shows unmistakably that the vendors were anxious to dispose of their shares by any means possible and they did not care whether shares were purchased by Khaitans or anybody else. The letter of both the Appellants written to Himatsingka on the 5th of January, 1941, practically clinches the matter and proves conclusively that the promise to sell their shares and interests in the business was not in any way dependent upon anybody elses joining with them in the transaction. Thus there was no intention on the part of the Defendants that the contract would not be binding unless Badri Prosad became a party to it and there has been no suggestion made on behalf of the Appellants either here or in the Courts below that any injustice would be done to them if they are compelled to perform the agreement which they made. On the other hand, as the trial Judge has rightly observed it would be doing very great injustice to the Plaintiffs if the Defendants are allowed to resile from the contract. The second contention of the Appellants must, therefore fail.The third point raised by the Appellants does not appear to us to be at all sound. The argument is that the contract being joint and indivisible, it was not open to the Plaintiffs to give up one of the Defendants and proceed against the other two. In our opinion, section 43 of the Indian Contract Act is a complete answer to this contention. Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. As the Plaintiffs in this case prayed ultimately for specific performance of a part of the contract in the manner contemplated by section 15 of the specific Relief Act and expressed their readiness to pay the entire consideration for 350 shares, the Appellant are not prejudiced in any way. 16. The fourth and the last point is not of any substance. The subject- matter of contract in the present case consists of certain shares in a private limited company and a fractional interest in a partnership business. Illustration (iii) under clause (c) of section 12 of the Specific Relief Act clearly shows that when shares are limited in number and are not ordinarily available in the market, it is quite proper to grant a decree for specific performance of a contract for the sale of such shares. Specific performance is undoubtedly a discretionary remedy but we are totally unable to say that the discretion has been wrongly exercised in the present case by the Courts below.
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long as this other person does not join the agreement. This would be the position in law apart from any rule of equity. The proposition laid down by Sir George Jessel goes much further than this. He speaks of two persons executing a deed on the faith that a third will do so and if this is known to the other party, equity will refuse to fasten any liability on the executing parties if the third party does not join in the act. It has been pointed out in the judgments of the various law Lords who decided the case of Naas v. Westminster Bank, Ltd. (6), that there is much that is indefinite and vague in the words of the learned Master of Rolls. The word faith cannot be taken to refer to a mere subjective expectation or mention in the mind of a particular party. It must be a matter not of conjecture but of positive proof; and in order that a relief might be claimed in equity, it is necessary to prove that substantial injustice would result if the deed is enforced unconditionally against the executing parties. Relief, therefore, could be given in those cases where the strict enforcement of law would lead to the executing parties being saddled with heavier liability than they otherwise would incur or would make the transaction substantially different from what it would have been if all the parties had jointed.The law being this fairly well-settled, it is difficult to see how on the finding concurrently arrived at by both the Courts below, the Appellants can make out a case which would enable them to call into aid the principles mentioned above.14. It cannot be disputed that the Plaintiffs all along desired to secure the whole lot of shares that was held by the Pedrona group and it was certainly to their interest to do so, as otherwise the cause of dissension would not be entirely removed. The three Defendants on their part, when they signed the letter dated the 28th of December, 1940, addressed to Himatsingka, agreed to sell all the 350 shares including the shares held by Badri Prosad.15. Whether Gobordhan Das though rightly or wrongly that he had authorities to dispose of the shares standing in the name of his brother as well, is not material for our present purpose. All that we can say is this that there is nothing in this letter which would show that it was the intention of the signatories that they would sell their shares and interests to the Plaintiffs if and only if Badri Prosad sold his. Badri Prosad was not in the picture at all and although Gobordhan Das Apparently agreed to sell his shares as well, there is no evidence of any understanding, either express or implied, even amongst the Defendants inter se that unless Badri Prosad actually came and joined the agreement, the contract would not be perfect or complete. None of the Defendants or even their Solicitor was examined as a witness in this case and no questions on this point were put to the Plaintiffs witness during their cross-examination. The letter of 28th December, 1940, if it shows anything shows unmistakably that the vendors were anxious to dispose of their shares by any means possible and they did not care whether shares were purchased by Khaitans or anybody else. The letter of both the Appellants written to Himatsingka on the 5th of January, 1941, practically clinches the matter and proves conclusively that the promise to sell their shares and interests in the business was not in any way dependent upon anybody elses joining with them in the transaction. Thus there was no intention on the part of the Defendants that the contract would not be binding unless Badri Prosad became a party to it and there has been no suggestion made on behalf of the Appellants either here or in the Courts below that any injustice would be done to them if they are compelled to perform the agreement which they made. On the other hand, as the trial Judge has rightly observed it would be doing very great injustice to the Plaintiffs if the Defendants are allowed to resile from the contract. The second contention of the Appellants must, therefore fail.The third point raised by the Appellants does not appear to us to be at all sound. The argument is that the contract being joint and indivisible, it was not open to the Plaintiffs to give up one of the Defendants and proceed against the other two. In our opinion, section 43 of the Indian Contract Act is a complete answer to this contention. Unlike English law the Indian law makes all joint liability, joint and several, in the absence of any agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors must have been made parties. As the Plaintiffs in this case prayed ultimately for specific performance of a part of the contract in the manner contemplated by section 15 of the specific Relief Act and expressed their readiness to pay the entire consideration for 350 shares, the Appellant are not prejudiced in any way.16. The fourth and the last point is not of any substance. The subject- matter of contract in the present case consists of certain shares in a private limited company and a fractional interest in a partnership business. Illustration (iii) under clause (c) of section 12 of the Specific Relief Act clearly shows that when shares are limited in number and are not ordinarily available in the market, it is quite proper to grant a decree for specific performance of a contract for the sale of such shares. Specific performance is undoubtedly a discretionary remedy but we are totally unable to say that the discretion has been wrongly exercised in the present case by the Courts below.
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Vst Industries Ltd Vs. Collector Of Central Excise, Hyd | later, it is indeed a case of sale on credit and, therefore, the interest charged from the date of delivery of goods till the date of realization of the price thereof should be deducted from the value of the goods. The interest charged, it is submitted, is only in lieu of the time taken in making t he payments by the up-country wholesale buyer. Since this is the amount received subsequent to the sale from the depots and does not fell within the ambient of any of the expresses held includible in Bombay Tyre International, it is clearly excludable. The claim for this deducting is, therefore, allowed." * 16. The aforesaid observations clearly show that when goods are sold on credit and interest is received that does not form par t of the price on which excise duty is payable. 17. Coming to the facts of the present case it is not in dispute that the appellants are charging a uniform price from their wholesale dealers. The price at which the cigarettes are sold at the factory gate was the same, irrespective of the fact whether the dealers wee buying the cigarettes on credit or against payment of money. As is indicated in the circular, and there is no dispute to what has been stated therein, one of the commercial considerations for introducing interest free deposit scheme was to cover the risk of credit salad extended to bulk customers. There is nothing on the record to show that the receipt of the deposit from some of the dealers could possible influence the fixation of the sale price even with regard to those sales which were made at the factory gate against cash and not on credit. Had there been a difference in the selling price where, for example, special discount was given to the dealers who had given a deposit then it may have been possible to say that there were two different markets and two different prices and that lesser price was being charged for an extractor consideration and, in such a case the notional or actual interest could be added. But that is not the case here, Metal Box case (supra) was the one where two different prices were being charged. In Metal Box case the assesses was manufacturing goods which were offered for sale to M/s Ponds India Ltd., a wholesale buyer, who required bulk of the containers manufactured by the assesses for marketing its cosmetic products. In order to ensure a steady and regular supply Ponds India Ltd. gave large advances and an agreement had been entered into between the parties as a result whereof discounts were given by the assesses Ponds India Ltd. which were to be deducted from the gross price. The deduction was not allowed by the excise authorities and the Tribunal. It was contended on behalf of the assesses in this Court that the Tribunal erred innerspring the loading of purchase price by the ad hoc Interest on advances made by Ponds India Ltd. to the assesses. While rejecting this contention this Court took notice of the Fact that Ponds India Ltd. was a wholesale buyer who was lifting ninety per cent of the total production of the appellant. The assesses was giving to Ponds India Ltd. fifty per cent discount from normal price and Ponds India ltd. had given large amounts of money free of interest to the assesses. In the these circumstances it was held that the price charged by the appellant from Ponds India Ltd, could not be said to be the normal price of containers and, therefore, the action of the department in taking into account the notional interest on the advances given was upheld.Metal Box case is clearly distinguishable. The amounts given as security deposit in he present cases represents only avoid of 21 days supply in a year whereas in Metal Box case large amounts of money had been advanced. Secondly, and what is more important, in Metal Box case the assesses had given fifty per cent discount to Ponds India Ltd. on it gross sale price and thereby charged lesser price than what was charged from the other buyers. In the present case the cigarettes are sold at the factory gate to the wholesale dealers at a uniform price irrespective of the fact whether the purchaser is buying the cigarettes o n credit or against payment of money in cash. 18. Excise duty, as has been held, is on the manufacture of goods at the price paid. The price paid in the present case is the same by all the dealers. There is nothing show that there was any special consideration which was shown to the dealers who had given the security deposit. Now has it been shown by reference to any documents or data that because of the receipt of such deposit the price charged from all the buyers was reduced. Merely because interest pre-deposit was reduced from some dealers cannot, by itself, lead to the conclusion arrived at by the excise authorities and the Tribunal. This also followed from the decisions in the Indian Oxygen and Madras Rubber Factorys cases (supra). There was, thus, no justification for disregarding the uniform wholesale price which was being charged from all the dealers and adding the element of notional interest of the security deposit to their said price. 19. This additional Collector, In our opinion, was right in coming to the conclusion that Rule 5 of the Valuation Rules was not applicable in the present case as it was not shown that the price charged was not the sole consideration. When the appellants are nor requiring al l the dealers to give security deposit and it is only those who avail of credit facilities who are required to give the security deposit but get no discount or pay a reduced price, then in such a case excise duty can be charged only on the uniform price paid by the dealers without any addition of notional interest. | 1[ds]It was held that the supply of gas cullenders was ancillary to the supply of gases. It was open to the customers to bring their own cylinders and deposit was required to be given only if the customers required the company to lend the cullenders. This activity of giving cylinders was held to be ancillary and profits and gains from the deposit so received was not required to be taken into account while computing the value of the escapable goods. It and also been contended on behalf of the Revenue that there were two different classes of buyers; one class of such buyers was that who used to being their own cylinders and the other who used to get supply of gases from the cylinders of the suppliers. It was, therefore, submitted that different rates for these two classes of buyers constituted two different markets which was permissible under Section 4. Dealing with this contention it was observed at page 732 as follows:"There may be different classes of buyers for different classes of goods. Section 4(1)(a) of t he Act exhaustless that if the goods is of the same type, the prices should also be the same. The proviso to the said Section postulates that where in accordance with normal practice such goods, namely, the gases are sold to different classes of buyers then different prices may be charged. it gases had been sold to different classes of buyers at different rates, it is possible that there might be different markets for the same. But here the charges like rentals for the cylinders and the notional interest income, are for ancillary or allied services and that is not an activity of manufacture. hence Section 4(1)(a) proviso can be of no avail to the revenue." *In Madras Rubber Factory case (supra) this Court analysed Section 4 and observed as under:"It is obvious that the value of excisable goods for the purpose of sub-section (1) of Section 4 is ordinarily determined with reference to the normal price at which such good are sold, i.e., under clause (a) of sub-section (1) of Section 4. Only where the goods are not sold and, therefore, the price of such goods is not ascertainable or in a situation where the normal price of such goods is not ascertainable for some other reason that clause (b) is attracted, hereunder the nearest ascertainable equivalent price is ascertained in accordance with the rules framed in that behalf. Clause (b) is in the nature of a residuary clause which should be resorted to where the normal price cannot be ascertained for the reasons mentioned therein. In other words, where the normal price cannot be ascertained for the reasons mentioned therein. In other words, where the normal price is available or is ascertainable, resort to clause (b) is not permissible." *It then considered as to what are the various deductions from the price received which were permissible in order to arrive at the assessable value. One of the amounts claimed as a deduction from the amount received by the manufacturer was the element of interest received by it on the goods sold on credit. Dealing with this the Court at Page 470 observed as under:"The case of the assesses (Madras Rubber Factor y) is that where the goods are sold to up-country wholesale buyers and payments are received quite sometime later, it is indeed a case of sale on credit and, therefore, the interest charged from the date of delivery of goods till the date of realization of the price thereof should be deducted from the value of the goods. The interest charged, it is submitted, is only in lieu of the time taken in making t he payments by the up-country wholesale buyer. Since this is the amount received subsequent to the sale from the depots and does not fell within the ambient of any of the expresses held includible in Bombay Tyre International, it is clearly excludable. The claim for this deducting is, therefore, allowed." *The aforesaid observations clearly show that when goods are sold on credit and interest is received that does not form par t of the price on which excise duty is payableComing to the facts of the present case it is not in dispute that the appellants are charging a uniform price from their wholesale dealers. The price at which the cigarettes are sold at the factory gate was the same, irrespective of the fact whether the dealers wee buying the cigarettes on credit or against payment of money. As is indicated in the circular, and there is no dispute to what has been stated therein, one of the commercial considerations for introducing interest free deposit scheme was to cover the risk of credit salad extended to bulk customers. There is nothing on the record to show that the receipt of the deposit from some of the dealers could possible influence the fixation of the sale price even with regard to those sales which were made at the factory gate against cash and not on credit. Had there been a difference in the selling price where, for example, special discount was given to the dealers who had given a deposit then it may have been possible to say that there were two different markets and two different prices and that lesser price was being charged for an extractor consideration and, in such a case the notional or actual interest could be added. But that is not the case here, Metal Box case (supra) was the one where two different prices were being charged. In Metal Box case the assesses was manufacturing goods which were offered for sale to M/s Ponds India Ltd., a wholesale buyer, who required bulk of the containers manufactured by the assesses for marketing its cosmetic products. In order to ensure a steady and regular supply Ponds India Ltd. gave large advances and an agreement had been entered into between the parties as a result whereof discounts were given by the assesses Ponds India Ltd. which were to be deducted from the gross price. The deduction was not allowed by the excise authorities and the Tribunal. It was contended on behalf of the assesses in this Court that the Tribunal erred innerspring the loading of purchase price by the ad hoc Interest on advances made by Ponds India Ltd. to the assesses. While rejecting this contention this Court took notice of the Fact that Ponds India Ltd. was a wholesale buyer who was lifting ninety per cent of the total production of the appellant. The assesses was giving to Ponds India Ltd. fifty per cent discount from normal price and Ponds India ltd. had given large amounts of money free of interest to the assesses. In the these circumstances it was held that the price charged by the appellant from Ponds India Ltd, could not be said to be the normal price of containers and, therefore, the action of the department in taking into account the notional interest on the advances given was upheld.Metal Box case is clearly distinguishable. The amounts given as security deposit in he present cases represents only avoid of 21 days supply in a year whereas in Metal Box case large amounts of money had been advanced. Secondly, and what is more important, in Metal Box case the assesses had given fifty per cent discount to Ponds India Ltd. on it gross sale price and thereby charged lesser price than what was charged from the other buyers. In the present case the cigarettes are sold at the factory gate to the wholesale dealers at a uniform price irrespective of the fact whether the purchaser is buying the cigarettes o n credit or against payment of money in cashExcise duty, as has been held, is on the manufacture of goods at the price paid. The price paid in the present case is the same by all the dealers. There is nothing show that there was any special consideration which was shown to the dealers who had given the security deposit. Now has it been shown by reference to any documents or data that because of the receipt of such deposit the price charged from all the buyers was reduced. Merely because interest pre-deposit was reduced from some dealers cannot, by itself, lead to the conclusion arrived at by the excise authorities and the Tribunal. This also followed from the decisions in the Indian Oxygen and Madras Rubber Factorys cases (supra). There was, thus, no justification for disregarding the uniform wholesale price which was being charged from all the dealers and adding the element of notional interest of the security deposit to their said priceThis additional Collector, In our opinion, was right in coming to the conclusion that Rule 5 of the Valuation Rules was not applicable in the present case as it was not shown that the price charged was not the sole consideration. When the appellants are nor requiring al l the dealers to give security deposit and it is only those who avail of credit facilities who are required to give the security deposit but get no discount or pay a reduced price, then in such a case excise duty can be charged only on the uniform price paid by the dealers without any addition of notional interest. | 1 | 3,467 | 1,697 | ### 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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later, it is indeed a case of sale on credit and, therefore, the interest charged from the date of delivery of goods till the date of realization of the price thereof should be deducted from the value of the goods. The interest charged, it is submitted, is only in lieu of the time taken in making t he payments by the up-country wholesale buyer. Since this is the amount received subsequent to the sale from the depots and does not fell within the ambient of any of the expresses held includible in Bombay Tyre International, it is clearly excludable. The claim for this deducting is, therefore, allowed." * 16. The aforesaid observations clearly show that when goods are sold on credit and interest is received that does not form par t of the price on which excise duty is payable. 17. Coming to the facts of the present case it is not in dispute that the appellants are charging a uniform price from their wholesale dealers. The price at which the cigarettes are sold at the factory gate was the same, irrespective of the fact whether the dealers wee buying the cigarettes on credit or against payment of money. As is indicated in the circular, and there is no dispute to what has been stated therein, one of the commercial considerations for introducing interest free deposit scheme was to cover the risk of credit salad extended to bulk customers. There is nothing on the record to show that the receipt of the deposit from some of the dealers could possible influence the fixation of the sale price even with regard to those sales which were made at the factory gate against cash and not on credit. Had there been a difference in the selling price where, for example, special discount was given to the dealers who had given a deposit then it may have been possible to say that there were two different markets and two different prices and that lesser price was being charged for an extractor consideration and, in such a case the notional or actual interest could be added. But that is not the case here, Metal Box case (supra) was the one where two different prices were being charged. In Metal Box case the assesses was manufacturing goods which were offered for sale to M/s Ponds India Ltd., a wholesale buyer, who required bulk of the containers manufactured by the assesses for marketing its cosmetic products. In order to ensure a steady and regular supply Ponds India Ltd. gave large advances and an agreement had been entered into between the parties as a result whereof discounts were given by the assesses Ponds India Ltd. which were to be deducted from the gross price. The deduction was not allowed by the excise authorities and the Tribunal. It was contended on behalf of the assesses in this Court that the Tribunal erred innerspring the loading of purchase price by the ad hoc Interest on advances made by Ponds India Ltd. to the assesses. While rejecting this contention this Court took notice of the Fact that Ponds India Ltd. was a wholesale buyer who was lifting ninety per cent of the total production of the appellant. The assesses was giving to Ponds India Ltd. fifty per cent discount from normal price and Ponds India ltd. had given large amounts of money free of interest to the assesses. In the these circumstances it was held that the price charged by the appellant from Ponds India Ltd, could not be said to be the normal price of containers and, therefore, the action of the department in taking into account the notional interest on the advances given was upheld.Metal Box case is clearly distinguishable. The amounts given as security deposit in he present cases represents only avoid of 21 days supply in a year whereas in Metal Box case large amounts of money had been advanced. Secondly, and what is more important, in Metal Box case the assesses had given fifty per cent discount to Ponds India Ltd. on it gross sale price and thereby charged lesser price than what was charged from the other buyers. In the present case the cigarettes are sold at the factory gate to the wholesale dealers at a uniform price irrespective of the fact whether the purchaser is buying the cigarettes o n credit or against payment of money in cash. 18. Excise duty, as has been held, is on the manufacture of goods at the price paid. The price paid in the present case is the same by all the dealers. There is nothing show that there was any special consideration which was shown to the dealers who had given the security deposit. Now has it been shown by reference to any documents or data that because of the receipt of such deposit the price charged from all the buyers was reduced. Merely because interest pre-deposit was reduced from some dealers cannot, by itself, lead to the conclusion arrived at by the excise authorities and the Tribunal. This also followed from the decisions in the Indian Oxygen and Madras Rubber Factorys cases (supra). There was, thus, no justification for disregarding the uniform wholesale price which was being charged from all the dealers and adding the element of notional interest of the security deposit to their said price. 19. This additional Collector, In our opinion, was right in coming to the conclusion that Rule 5 of the Valuation Rules was not applicable in the present case as it was not shown that the price charged was not the sole consideration. When the appellants are nor requiring al l the dealers to give security deposit and it is only those who avail of credit facilities who are required to give the security deposit but get no discount or pay a reduced price, then in such a case excise duty can be charged only on the uniform price paid by the dealers without any addition of notional interest.
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wholesale buyers and payments are received quite sometime later, it is indeed a case of sale on credit and, therefore, the interest charged from the date of delivery of goods till the date of realization of the price thereof should be deducted from the value of the goods. The interest charged, it is submitted, is only in lieu of the time taken in making t he payments by the up-country wholesale buyer. Since this is the amount received subsequent to the sale from the depots and does not fell within the ambient of any of the expresses held includible in Bombay Tyre International, it is clearly excludable. The claim for this deducting is, therefore, allowed." *The aforesaid observations clearly show that when goods are sold on credit and interest is received that does not form par t of the price on which excise duty is payableComing to the facts of the present case it is not in dispute that the appellants are charging a uniform price from their wholesale dealers. The price at which the cigarettes are sold at the factory gate was the same, irrespective of the fact whether the dealers wee buying the cigarettes on credit or against payment of money. As is indicated in the circular, and there is no dispute to what has been stated therein, one of the commercial considerations for introducing interest free deposit scheme was to cover the risk of credit salad extended to bulk customers. There is nothing on the record to show that the receipt of the deposit from some of the dealers could possible influence the fixation of the sale price even with regard to those sales which were made at the factory gate against cash and not on credit. Had there been a difference in the selling price where, for example, special discount was given to the dealers who had given a deposit then it may have been possible to say that there were two different markets and two different prices and that lesser price was being charged for an extractor consideration and, in such a case the notional or actual interest could be added. But that is not the case here, Metal Box case (supra) was the one where two different prices were being charged. In Metal Box case the assesses was manufacturing goods which were offered for sale to M/s Ponds India Ltd., a wholesale buyer, who required bulk of the containers manufactured by the assesses for marketing its cosmetic products. In order to ensure a steady and regular supply Ponds India Ltd. gave large advances and an agreement had been entered into between the parties as a result whereof discounts were given by the assesses Ponds India Ltd. which were to be deducted from the gross price. The deduction was not allowed by the excise authorities and the Tribunal. It was contended on behalf of the assesses in this Court that the Tribunal erred innerspring the loading of purchase price by the ad hoc Interest on advances made by Ponds India Ltd. to the assesses. While rejecting this contention this Court took notice of the Fact that Ponds India Ltd. was a wholesale buyer who was lifting ninety per cent of the total production of the appellant. The assesses was giving to Ponds India Ltd. fifty per cent discount from normal price and Ponds India ltd. had given large amounts of money free of interest to the assesses. In the these circumstances it was held that the price charged by the appellant from Ponds India Ltd, could not be said to be the normal price of containers and, therefore, the action of the department in taking into account the notional interest on the advances given was upheld.Metal Box case is clearly distinguishable. The amounts given as security deposit in he present cases represents only avoid of 21 days supply in a year whereas in Metal Box case large amounts of money had been advanced. Secondly, and what is more important, in Metal Box case the assesses had given fifty per cent discount to Ponds India Ltd. on it gross sale price and thereby charged lesser price than what was charged from the other buyers. In the present case the cigarettes are sold at the factory gate to the wholesale dealers at a uniform price irrespective of the fact whether the purchaser is buying the cigarettes o n credit or against payment of money in cashExcise duty, as has been held, is on the manufacture of goods at the price paid. The price paid in the present case is the same by all the dealers. There is nothing show that there was any special consideration which was shown to the dealers who had given the security deposit. Now has it been shown by reference to any documents or data that because of the receipt of such deposit the price charged from all the buyers was reduced. Merely because interest pre-deposit was reduced from some dealers cannot, by itself, lead to the conclusion arrived at by the excise authorities and the Tribunal. This also followed from the decisions in the Indian Oxygen and Madras Rubber Factorys cases (supra). There was, thus, no justification for disregarding the uniform wholesale price which was being charged from all the dealers and adding the element of notional interest of the security deposit to their said priceThis additional Collector, In our opinion, was right in coming to the conclusion that Rule 5 of the Valuation Rules was not applicable in the present case as it was not shown that the price charged was not the sole consideration. When the appellants are nor requiring al l the dealers to give security deposit and it is only those who avail of credit facilities who are required to give the security deposit but get no discount or pay a reduced price, then in such a case excise duty can be charged only on the uniform price paid by the dealers without any addition of notional interest.
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Shree Krishna Agency Ltd Vs. Commissioner Of Income Tax Central, Calcutta | nothing contained in the section shall apply to any company in which the public are substantially interested. Explanation (1) which was so renumbered by Section 7 of the Finance Act of 1957 to the extent it is material is as follows:"For the purposes of this section, a company shall be deemed to be a company in which the public are substantially interested-(a) ........................(b) if it is not a private company as defined in the Indian Companies Act, 1913 (VII of 1913), and(i) ..........................(ii) the said shares were at any time during the previous year the subject of dealing in any recognised stock exchange in India or were freely transferable by the holder to other members of the public; and(iii) ........................"The Calcutta High Court referred to the relevant provisions of the Indian Companies Act, 1913 according to which unless the Article provided otherwise the shareholder had a free right to transfer his shares to whomsoever he liked. But it was considered that where the Articles contained a power under which the Directors could decline to register any transfer of shares the right of free transfer was cut down by that Article and this affected the question of free transferability of the shares. Moreover the transfer of shares was not complete until the registration of the name of the transferee and if such a registration could not be insisted on as a matter of right it could not be said that the shares were freely transferable. The Madras High Court in East India Corpn. Ltd. v. Commr. of Income-tax Madras, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, Bombay, (1969) 74 ITR 823 (Bom) took the contrary view and dissented from the opinion expressed in the Calcutta case that in the presence of an article similar to Article 37 of the Articles of Association of the assessee the shares would not be freely transferable within the meaning of Clause (ii) to Explanation 1 in Section 23 -A (9) of the Act. It may be mentioned that before its amendment by the Finance Act 1955 the corresponding provision appeared in the Explanation in Section 23-A (1) after the third proviso. But instead of the word "were" the word "are" was employed. The question, therefore, which has to be examined is whether the shares could be regarded as freely transferable to other members of the public. In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the word "transferable":""Transferable", ex facie, is not to be equated to "transferred". The word imports a quality, a legal effect arising out of or inherent in the character and nature of the shares themselves. This quality does not stand by itself, for Section says "are in fact freely transferable." We have to give effect to each of these words, and if we did so, transferability is qualified by the fact which in the context, to our minds, means a factual tendency which is unrestricted and which ensures transferability. In other words, we understand by the words "are in fact freely transferable" not that there should necessarily be actual transfers of shares, but a factual tendency towards free transfer of shares, subject, of course, to reasonable restrictions by holders to other members of the public."The Directors have certainly been given a discretion by Article 37 to decline to register any proposed transfer of shares but that does not mean that the shares cease to be transferable. The said Article does not confer any uncontrolled or unrestricted discretion upon the Directors to refuse to register the transfer of shares in a given case. In other words the Directors cannot act arbitrarily or capriciously. It is well known that the power conferred by such an Article is of a fiduciary nature which has to be exercised by the Directors in the best interests of the company for preventing any undesirable person becoming a member if that is likely to be prejudicial to the company. It is a power which has to be reasonably exercised for protecting the interests of the company. It cannot be assumed that the discretion conferred on the Directors will be abused for ulterior purposes. The discretion which has been conferred for being exercised in the interest of the company cannot take away the tendency of the free transferability of the shares in the absence of cogent material or other factors from which it can be inferred that the shares were not capable of being freely transferred. Article 37 can by no stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another. Free transferability of shares is a normal and common feature of limited companies. Indeed there would hardly be any public company in the Memorandum of Articles of which an Article similar to Article 37 will not be found. This Article appears even in the standard Articles of Association prescribed under the Companies Act itself. The purposes, as has been noticed before is only to give power to the Directors for declining to register the transfer of a share when the paramount interests of the company so require. There may be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated the element of free transferability. In such cases it may be possible to hold that in fact the shares were not freely transferable. But in the present case there is no evidence of the Directors having acted in the aforesaid manner nor is there any restriction in the other Article of Association interfering with the free transfer of shares by one shareholder to another. We are unable, therefore, to uphold the judgment of the Calcutta High Court that the mere existence of an Article like Article 37 would affect the free transferability of the shares within the meaning of the Explanation. | 1[ds]The Directors have certainly been given a discretion by Article 37 to decline to register any proposed transfer of shares but that does not mean that the shares cease to be transferable. The said Article does not confer any uncontrolled or unrestricted discretion upon the Directors to refuse to register the transfer of shares in a given case. In other words the Directors cannot act arbitrarily or capriciously. It is well known that the power conferred by such an Article is of a fiduciary nature which has to be exercised by the Directors in the best interests of the company for preventing any undesirable person becoming a member if that is likely to be prejudicial to the company. It is a power which has to be reasonably exercised for protecting the interests of the company. It cannot be assumed that the discretion conferred on the Directors will be abused for ulterior purposes. The discretion which has been conferred for being exercised in the interest of the company cannot take away the tendency of the free transferability of the shares in the absence of cogent material or other factors from which it can be inferred that the shares were not capable of being freely transferred. Article 37 can by no stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another. Free transferability of shares is a normal and common feature of limited companies. Indeed there would hardly be any public company in the Memorandum of Articles of which an Article similar to Article 37 will not be found. This Article appears even in the standard Articles of Association prescribed under the Companies Act itself. The purposes, as has been noticed before is only to give power to the Directors for declining to register the transfer of a share when the paramount interests of the company so require. There may be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated the element of free transferability. In such cases it may be possible to hold that in fact the shares were not freely transferable. But in the present case there is no evidence of the Directors having acted in the aforesaid manner nor is there any restriction in the other Article of Association interfering with the free transfer of shares by one shareholder to another. We are unable, therefore, to uphold the judgment of the Calcutta High Court that the mere existence of an Article like Article 37 would affect the free transferability of the shares within the meaning of thesimilar question was referred in the case relating to the assessment yearsThe High Court following a judgment of the same court in Commr. ofWest Bengal v. Tona Jute Co. Ltd., (1963) 48 ITR 902 (Cal) answered the questions referred against the assessee and in favour of the Revenue. In that case the Calcutta High Court had expressed the view that a public company whose Directors had absolute discretion to refuse to register the transfer of any share to any person "whom it shall in their opinion be undesirable in the interest of the company to admit to membership" and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of the Explanation in SectionThe Calcutta High Court referred to the relevant provisionsof the IndianCompanies Act, 1913 according to which unless the Article provided otherwise the shareholder had a free right to transfer his shares to whomsoever he liked. But it was considered that where the Articles contained a power under which the Directors could decline to register any transfer of shares the right of free transfer was cut down by that Article and this affected the question of free transferability of the shares. Moreover the transfer of shares was not complete until the registration of the name of the transferee and if such a registration could not be insisted on as a matter of right it could not be said that the shares were freely transferable. The Madras High Court in East India Corpn. Ltd. v. Commr. ofMadras, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. ofBombay, (1969) 74 ITR 823 (Bom) took the contrary view and dissented from the opinion expressed in the Calcutta case that in the presence of an article similar to Article 37 of the Articles of Association of the assessee the shares would not be freely transferable within the meaning of Clause (ii) to Explanation 1 in Section 23A (9) of the Act. It may be mentioned that before its amendment by the Finance Act 1955 the corresponding provision appeared in the Explanation in Section(1) after the third proviso. But instead of the word "were" the word "are" was employed. The question, therefore, which has to be examined iswhether the shares could be regarded as freely transferable to other members of the public.In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the wordex facie, is not to be equated to "transferred". The word imports a quality, a legal effect arising out of or inherent in the character and nature of the shares themselves. This quality does not stand by itself, for Section says "are in fact freely transferable." We have to give effect to each of these words, and if we did so, transferability is qualified by the fact which in the context, to our minds, means a factual tendency which is unrestricted and which ensures transferability. In other words, we understand by the words "are in fact freely transferable" not that there should necessarily be actual transfers of shares, but a factual tendency towards free transfer of shares, subject, of course, to reasonable restrictions by holders to other members of the public." | 1 | 1,641 | 1,089 | ### 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:
nothing contained in the section shall apply to any company in which the public are substantially interested. Explanation (1) which was so renumbered by Section 7 of the Finance Act of 1957 to the extent it is material is as follows:"For the purposes of this section, a company shall be deemed to be a company in which the public are substantially interested-(a) ........................(b) if it is not a private company as defined in the Indian Companies Act, 1913 (VII of 1913), and(i) ..........................(ii) the said shares were at any time during the previous year the subject of dealing in any recognised stock exchange in India or were freely transferable by the holder to other members of the public; and(iii) ........................"The Calcutta High Court referred to the relevant provisions of the Indian Companies Act, 1913 according to which unless the Article provided otherwise the shareholder had a free right to transfer his shares to whomsoever he liked. But it was considered that where the Articles contained a power under which the Directors could decline to register any transfer of shares the right of free transfer was cut down by that Article and this affected the question of free transferability of the shares. Moreover the transfer of shares was not complete until the registration of the name of the transferee and if such a registration could not be insisted on as a matter of right it could not be said that the shares were freely transferable. The Madras High Court in East India Corpn. Ltd. v. Commr. of Income-tax Madras, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, Bombay, (1969) 74 ITR 823 (Bom) took the contrary view and dissented from the opinion expressed in the Calcutta case that in the presence of an article similar to Article 37 of the Articles of Association of the assessee the shares would not be freely transferable within the meaning of Clause (ii) to Explanation 1 in Section 23 -A (9) of the Act. It may be mentioned that before its amendment by the Finance Act 1955 the corresponding provision appeared in the Explanation in Section 23-A (1) after the third proviso. But instead of the word "were" the word "are" was employed. The question, therefore, which has to be examined is whether the shares could be regarded as freely transferable to other members of the public. In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the word "transferable":""Transferable", ex facie, is not to be equated to "transferred". The word imports a quality, a legal effect arising out of or inherent in the character and nature of the shares themselves. This quality does not stand by itself, for Section says "are in fact freely transferable." We have to give effect to each of these words, and if we did so, transferability is qualified by the fact which in the context, to our minds, means a factual tendency which is unrestricted and which ensures transferability. In other words, we understand by the words "are in fact freely transferable" not that there should necessarily be actual transfers of shares, but a factual tendency towards free transfer of shares, subject, of course, to reasonable restrictions by holders to other members of the public."The Directors have certainly been given a discretion by Article 37 to decline to register any proposed transfer of shares but that does not mean that the shares cease to be transferable. The said Article does not confer any uncontrolled or unrestricted discretion upon the Directors to refuse to register the transfer of shares in a given case. In other words the Directors cannot act arbitrarily or capriciously. It is well known that the power conferred by such an Article is of a fiduciary nature which has to be exercised by the Directors in the best interests of the company for preventing any undesirable person becoming a member if that is likely to be prejudicial to the company. It is a power which has to be reasonably exercised for protecting the interests of the company. It cannot be assumed that the discretion conferred on the Directors will be abused for ulterior purposes. The discretion which has been conferred for being exercised in the interest of the company cannot take away the tendency of the free transferability of the shares in the absence of cogent material or other factors from which it can be inferred that the shares were not capable of being freely transferred. Article 37 can by no stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another. Free transferability of shares is a normal and common feature of limited companies. Indeed there would hardly be any public company in the Memorandum of Articles of which an Article similar to Article 37 will not be found. This Article appears even in the standard Articles of Association prescribed under the Companies Act itself. The purposes, as has been noticed before is only to give power to the Directors for declining to register the transfer of a share when the paramount interests of the company so require. There may be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated the element of free transferability. In such cases it may be possible to hold that in fact the shares were not freely transferable. But in the present case there is no evidence of the Directors having acted in the aforesaid manner nor is there any restriction in the other Article of Association interfering with the free transfer of shares by one shareholder to another. We are unable, therefore, to uphold the judgment of the Calcutta High Court that the mere existence of an Article like Article 37 would affect the free transferability of the shares within the meaning of the Explanation.
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1
### Explanation:
been given a discretion by Article 37 to decline to register any proposed transfer of shares but that does not mean that the shares cease to be transferable. The said Article does not confer any uncontrolled or unrestricted discretion upon the Directors to refuse to register the transfer of shares in a given case. In other words the Directors cannot act arbitrarily or capriciously. It is well known that the power conferred by such an Article is of a fiduciary nature which has to be exercised by the Directors in the best interests of the company for preventing any undesirable person becoming a member if that is likely to be prejudicial to the company. It is a power which has to be reasonably exercised for protecting the interests of the company. It cannot be assumed that the discretion conferred on the Directors will be abused for ulterior purposes. The discretion which has been conferred for being exercised in the interest of the company cannot take away the tendency of the free transferability of the shares in the absence of cogent material or other factors from which it can be inferred that the shares were not capable of being freely transferred. Article 37 can by no stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another. Free transferability of shares is a normal and common feature of limited companies. Indeed there would hardly be any public company in the Memorandum of Articles of which an Article similar to Article 37 will not be found. This Article appears even in the standard Articles of Association prescribed under the Companies Act itself. The purposes, as has been noticed before is only to give power to the Directors for declining to register the transfer of a share when the paramount interests of the company so require. There may be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated the element of free transferability. In such cases it may be possible to hold that in fact the shares were not freely transferable. But in the present case there is no evidence of the Directors having acted in the aforesaid manner nor is there any restriction in the other Article of Association interfering with the free transfer of shares by one shareholder to another. We are unable, therefore, to uphold the judgment of the Calcutta High Court that the mere existence of an Article like Article 37 would affect the free transferability of the shares within the meaning of thesimilar question was referred in the case relating to the assessment yearsThe High Court following a judgment of the same court in Commr. ofWest Bengal v. Tona Jute Co. Ltd., (1963) 48 ITR 902 (Cal) answered the questions referred against the assessee and in favour of the Revenue. In that case the Calcutta High Court had expressed the view that a public company whose Directors had absolute discretion to refuse to register the transfer of any share to any person "whom it shall in their opinion be undesirable in the interest of the company to admit to membership" and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of the Explanation in SectionThe Calcutta High Court referred to the relevant provisionsof the IndianCompanies Act, 1913 according to which unless the Article provided otherwise the shareholder had a free right to transfer his shares to whomsoever he liked. But it was considered that where the Articles contained a power under which the Directors could decline to register any transfer of shares the right of free transfer was cut down by that Article and this affected the question of free transferability of the shares. Moreover the transfer of shares was not complete until the registration of the name of the transferee and if such a registration could not be insisted on as a matter of right it could not be said that the shares were freely transferable. The Madras High Court in East India Corpn. Ltd. v. Commr. ofMadras, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. ofBombay, (1969) 74 ITR 823 (Bom) took the contrary view and dissented from the opinion expressed in the Calcutta case that in the presence of an article similar to Article 37 of the Articles of Association of the assessee the shares would not be freely transferable within the meaning of Clause (ii) to Explanation 1 in Section 23A (9) of the Act. It may be mentioned that before its amendment by the Finance Act 1955 the corresponding provision appeared in the Explanation in Section(1) after the third proviso. But instead of the word "were" the word "are" was employed. The question, therefore, which has to be examined iswhether the shares could be regarded as freely transferable to other members of the public.In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the wordex facie, is not to be equated to "transferred". The word imports a quality, a legal effect arising out of or inherent in the character and nature of the shares themselves. This quality does not stand by itself, for Section says "are in fact freely transferable." We have to give effect to each of these words, and if we did so, transferability is qualified by the fact which in the context, to our minds, means a factual tendency which is unrestricted and which ensures transferability. In other words, we understand by the words "are in fact freely transferable" not that there should necessarily be actual transfers of shares, but a factual tendency towards free transfer of shares, subject, of course, to reasonable restrictions by holders to other members of the public."
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National Insurance Co. Ltd Vs. Gulab Nabi & Another | Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Allahabad High Court dismissing the appeal filed by the appellant summarily. 3. The appeal was filed under Section 30 of the Workmens Compensation Act, 1928 (in short the `Act). The primary stand taken by the appellant was that the claimant had not established the employer employee relationship so far as the insured deceased is concerned. It was also pointed out that there is no evidence to show that the deceased had sustained injuries under the employment and in the course of employment of the deceased insured.4. A Claim Petition was filed under Section 4 of the Act against owner of the offending vehicle and the appellant-National Insurance Co. The Commissioner directed payment of Rs.2,68,800/- to respondent No.1 along with interest @12%. In terms of Section 20 of the Act, the appellant-National Insurance Company was directed for payment to respondent No.1. The award made by the Commissioner was questioned before the High Court in an appeal which came to be dismissed summarily in the following manner: "Heard learned counsel for the appellant and learned Standing Counsel for the State.The appeal has got no force.The appeal is dismissed." 5. Learned counsel for the appellant submitted that it was not a case where no substantial question of law is involved. In fact, the acceptability of the evidence in view of various concessions made by the claimant has been completely lost sight by the High Court.6. There is no appearance on behalf of respondents. As rightly contended by learned counsel for the appellant, the question whether the Insurance Company has a liability and, if so, what is the quantum was under consideration by the High Court. There is no suitable evidence so far as income of the deceased is concerned.7. Non-application of mind is clear from the fact that since the State was not a party, the question of hearing the learned Standing Counsel for the State does not arise. The order therefore has been passed without any application of mind. The order is also non-reasoned.8. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.9. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971 (1) All ER 1148) observed: (All ER p.1154h) `The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120 (NIRC) it was observed: `Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The `inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.10. The manner in which the appeal has been dismissed is not the proper course while dealing with the appeal when it raised substantial question of law. | 1[ds]is no suitable evidence so far as income of the deceased is concerned.7. Non-application of mind is clear from the fact that since the State was not a party, the question of hearing the learned Standing Counsel for the State does not arise. The order therefore has been passed without any application of mind. The order is also non-reasoned.8. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.9. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971 (1) All ER 1148) observed: (All ER p.1154h) `The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120 (NIRC) it was observed: `Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The `inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.10. The manner in which the appeal has been dismissed is not the proper course while dealing with the appeal when it raised substantial question of law. | 1 | 720 | 395 | ### 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:
Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Allahabad High Court dismissing the appeal filed by the appellant summarily. 3. The appeal was filed under Section 30 of the Workmens Compensation Act, 1928 (in short the `Act). The primary stand taken by the appellant was that the claimant had not established the employer employee relationship so far as the insured deceased is concerned. It was also pointed out that there is no evidence to show that the deceased had sustained injuries under the employment and in the course of employment of the deceased insured.4. A Claim Petition was filed under Section 4 of the Act against owner of the offending vehicle and the appellant-National Insurance Co. The Commissioner directed payment of Rs.2,68,800/- to respondent No.1 along with interest @12%. In terms of Section 20 of the Act, the appellant-National Insurance Company was directed for payment to respondent No.1. The award made by the Commissioner was questioned before the High Court in an appeal which came to be dismissed summarily in the following manner: "Heard learned counsel for the appellant and learned Standing Counsel for the State.The appeal has got no force.The appeal is dismissed." 5. Learned counsel for the appellant submitted that it was not a case where no substantial question of law is involved. In fact, the acceptability of the evidence in view of various concessions made by the claimant has been completely lost sight by the High Court.6. There is no appearance on behalf of respondents. As rightly contended by learned counsel for the appellant, the question whether the Insurance Company has a liability and, if so, what is the quantum was under consideration by the High Court. There is no suitable evidence so far as income of the deceased is concerned.7. Non-application of mind is clear from the fact that since the State was not a party, the question of hearing the learned Standing Counsel for the State does not arise. The order therefore has been passed without any application of mind. The order is also non-reasoned.8. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.9. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971 (1) All ER 1148) observed: (All ER p.1154h) `The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120 (NIRC) it was observed: `Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The `inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.10. The manner in which the appeal has been dismissed is not the proper course while dealing with the appeal when it raised substantial question of law.
### Response:
1
### Explanation:
is no suitable evidence so far as income of the deceased is concerned.7. Non-application of mind is clear from the fact that since the State was not a party, the question of hearing the learned Standing Counsel for the State does not arise. The order therefore has been passed without any application of mind. The order is also non-reasoned.8. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.9. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971 (1) All ER 1148) observed: (All ER p.1154h) `The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120 (NIRC) it was observed: `Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The `inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.10. The manner in which the appeal has been dismissed is not the proper course while dealing with the appeal when it raised substantial question of law.
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Mohammad Sadique Vs. Darbara Singh Guru | the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said i.e. whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here.” (Emphasis supplied) 20. In paragraphs 51 and 52 in Kailash Sonkar (supra), on the facts of said case, this Court gave following conclusions: - “51. ……………(1) That the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian,(2) That 3-4 years before the election, the respondent was reconverted to Hinduism and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the Shudhikaran ceremony,(3) That she was not only accepted but also welcomed by the important members, including the President and Vice-President, of the community,(4) There is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism,(5) That there was no evidence to show that even her parents had been Christian from generation to generation.52. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste.” 21. In K.P. Manu v. Scrunity Committee for Verification of Community Certificate (2015) 4 SCC 1 ), one of the questions examined by this Court is – whether on re-conversion, a person born to Christian parents could, after reconversion to the Hindu religion, be eligible to claim the benefit of his original caste. Referring to various case laws, including those referred above, this Court disagreed with the finding of Scrutiny Committee that caste certificate issued to a person on the basis of the fact that though the great grandfathers of such person belonged to Pulaya community (i.e. Scheduled Caste), but he was born after his ancestors embraced Christianity and thereafter, reconverted into Hindu religion is not entitled to the Scheduled Caste certificate. Constitution Bench decision in Guntur Medical College (supra) and three-Judge Bench decisions in S. Anbalagan (supra) and Kailash Sonkar (supra) are referred to and relied upon in K.P. Manu (supra). 22. In the case at hand, admittedly the appellant was born to muslim parents. However, he has proved that his family members though followed Islam but they belonged to “Doom” community. It is settled law that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth. It is proved on the record that the appellant was issued a caste certificate as he was found to be member of ‘Doom’ community by the competent authority, after he declared that he has embraced Sikhism, and he was accepted by the Sikh community. It is not disputed that ‘Doom’ in Punjab is a Scheduled Caste under Constitution (Scheduled Castes) Order, 1950. The Scheduled Caste Certificate No. 6149 dated 25.08.2006 (Exh PG/2) was issued to the appellant by the competent authority, and accepted by the returning officer. Said certificate appears to have not been cancelled. What is shown on behalf of the respondent is that vide communication dated 17.11.2008 (Ext. PJ) State authorities informed and clarified to the Deputy Commissioner that members following Islam are not entitled to the certificate of Scheduled Caste, and if issued, certificates may be cancelled. But the certificate (PG/2) dated 25.08.2006 already issued in favour of appellant, is not cancelled, which he obtained after his conversion to Sikhism. It is proved on the record that the appellant embraced Sikh religion on 13.04.2006, and got published the declaration on 04.01.2007 in the newspapers Hindustan Times (English) Exh.RA, and Ajit (Punjabi) Exh RB. Nomination for election in question was filed by him five years thereafter. The appellant has further sufficiently explained that since he was popular as a singer with the name – ‘Mohammad Sadique’ as such without changing his name, he accepted the Sikhism and followed all rites and traditions of Sikh Religion. 23. It is not essential for anyone to change one’s name after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in law that entire family of a person should convert or reconvert to the religion to which he has gone. RW-5 Mohammad Sadique has stated that he not only followed Sikh traditions, he never offered Namaz, nor observed Roza nor went to Haj. It is also relevant to mention here that PW-7 Darbara Singh Guru (respondent-Election Petitioner) in his cross-examination admits that he did not raise any objection at the time when nomination papers were filed by the appellant.24. In the above circumstances, we are inclined to hold that the High Court has erred in law, by ignoring the above facts on the record, and giving importance to form of declaration, and the interview said to have been given by appellant to PW 6 Gulzar Singh Shaunki, author of book - “Sada Bahar Gayak – Mohammad Sadique : Jeevan Te Geet” (Exh.PK). Statement of the appellant RW-5 regarding conversion to Sikhism, is fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presented ‘Saropa’ to the appellant. 25. Having re-appreciated the evidence on record, as above, and keeping in view the law laid down by this Court in Guntur Medical College v. Y. Mohan Rao (1976) 3 SCC 411 ), S. Anbalagan v. B. Devarajan (1984) 2 SCC 112 ), and Kailash Sonkar v. Maya Devi (1984) 2 SCC 91 ), in our opinion, the impugned judgment passed by the High Court cannot be upheld. | 1[ds]23. It is not essential for anyone to changename after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in law that entire family of a person should convert or reconvert to the religion to which he has gone. RW-5 Mohammad Sadique has stated that he not only followed Sikh traditions, he never offered Namaz, nor observed Roza nor went to Haj. It is also relevant to mention here that PW-7 Darbara Singh Guru (respondent-Election Petitioner) in his cross-examination admits that he did not raise any objection at the time when nomination papers were filed by the appellant.24. In the above circumstances, we are inclined to hold that the High Court has erred in law, by ignoring the above facts on the record, and giving importance to form of declaration, and the interview said to have been given by appellant to PW 6 Gulzar Singh Shaunki, author of book -r Gayak – Mohammad Sadique : Jeevan Te(Exh.PK). Statement of the appellant RW-5 regarding conversion to Sikhism, is fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presentedour opinion, the impugned judgment passed by the High Court cannot be upheld. | 1 | 6,982 | 267 | ### Instruction:
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### Input:
the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said i.e. whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here.” (Emphasis supplied) 20. In paragraphs 51 and 52 in Kailash Sonkar (supra), on the facts of said case, this Court gave following conclusions: - “51. ……………(1) That the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian,(2) That 3-4 years before the election, the respondent was reconverted to Hinduism and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the Shudhikaran ceremony,(3) That she was not only accepted but also welcomed by the important members, including the President and Vice-President, of the community,(4) There is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism,(5) That there was no evidence to show that even her parents had been Christian from generation to generation.52. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste.” 21. In K.P. Manu v. Scrunity Committee for Verification of Community Certificate (2015) 4 SCC 1 ), one of the questions examined by this Court is – whether on re-conversion, a person born to Christian parents could, after reconversion to the Hindu religion, be eligible to claim the benefit of his original caste. Referring to various case laws, including those referred above, this Court disagreed with the finding of Scrutiny Committee that caste certificate issued to a person on the basis of the fact that though the great grandfathers of such person belonged to Pulaya community (i.e. Scheduled Caste), but he was born after his ancestors embraced Christianity and thereafter, reconverted into Hindu religion is not entitled to the Scheduled Caste certificate. Constitution Bench decision in Guntur Medical College (supra) and three-Judge Bench decisions in S. Anbalagan (supra) and Kailash Sonkar (supra) are referred to and relied upon in K.P. Manu (supra). 22. In the case at hand, admittedly the appellant was born to muslim parents. However, he has proved that his family members though followed Islam but they belonged to “Doom” community. It is settled law that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth. It is proved on the record that the appellant was issued a caste certificate as he was found to be member of ‘Doom’ community by the competent authority, after he declared that he has embraced Sikhism, and he was accepted by the Sikh community. It is not disputed that ‘Doom’ in Punjab is a Scheduled Caste under Constitution (Scheduled Castes) Order, 1950. The Scheduled Caste Certificate No. 6149 dated 25.08.2006 (Exh PG/2) was issued to the appellant by the competent authority, and accepted by the returning officer. Said certificate appears to have not been cancelled. What is shown on behalf of the respondent is that vide communication dated 17.11.2008 (Ext. PJ) State authorities informed and clarified to the Deputy Commissioner that members following Islam are not entitled to the certificate of Scheduled Caste, and if issued, certificates may be cancelled. But the certificate (PG/2) dated 25.08.2006 already issued in favour of appellant, is not cancelled, which he obtained after his conversion to Sikhism. It is proved on the record that the appellant embraced Sikh religion on 13.04.2006, and got published the declaration on 04.01.2007 in the newspapers Hindustan Times (English) Exh.RA, and Ajit (Punjabi) Exh RB. Nomination for election in question was filed by him five years thereafter. The appellant has further sufficiently explained that since he was popular as a singer with the name – ‘Mohammad Sadique’ as such without changing his name, he accepted the Sikhism and followed all rites and traditions of Sikh Religion. 23. It is not essential for anyone to change one’s name after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in law that entire family of a person should convert or reconvert to the religion to which he has gone. RW-5 Mohammad Sadique has stated that he not only followed Sikh traditions, he never offered Namaz, nor observed Roza nor went to Haj. It is also relevant to mention here that PW-7 Darbara Singh Guru (respondent-Election Petitioner) in his cross-examination admits that he did not raise any objection at the time when nomination papers were filed by the appellant.24. In the above circumstances, we are inclined to hold that the High Court has erred in law, by ignoring the above facts on the record, and giving importance to form of declaration, and the interview said to have been given by appellant to PW 6 Gulzar Singh Shaunki, author of book - “Sada Bahar Gayak – Mohammad Sadique : Jeevan Te Geet” (Exh.PK). Statement of the appellant RW-5 regarding conversion to Sikhism, is fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presented ‘Saropa’ to the appellant. 25. Having re-appreciated the evidence on record, as above, and keeping in view the law laid down by this Court in Guntur Medical College v. Y. Mohan Rao (1976) 3 SCC 411 ), S. Anbalagan v. B. Devarajan (1984) 2 SCC 112 ), and Kailash Sonkar v. Maya Devi (1984) 2 SCC 91 ), in our opinion, the impugned judgment passed by the High Court cannot be upheld.
### Response:
1
### Explanation:
23. It is not essential for anyone to changename after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in law that entire family of a person should convert or reconvert to the religion to which he has gone. RW-5 Mohammad Sadique has stated that he not only followed Sikh traditions, he never offered Namaz, nor observed Roza nor went to Haj. It is also relevant to mention here that PW-7 Darbara Singh Guru (respondent-Election Petitioner) in his cross-examination admits that he did not raise any objection at the time when nomination papers were filed by the appellant.24. In the above circumstances, we are inclined to hold that the High Court has erred in law, by ignoring the above facts on the record, and giving importance to form of declaration, and the interview said to have been given by appellant to PW 6 Gulzar Singh Shaunki, author of book -r Gayak – Mohammad Sadique : Jeevan Te(Exh.PK). Statement of the appellant RW-5 regarding conversion to Sikhism, is fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presentedour opinion, the impugned judgment passed by the High Court cannot be upheld.
|
OFFICIAL LIQUIDATOR, M/S. METALLIC SOAPS & CHEMICALS (PVT.) LTD Vs. MANAGER, KARNATAKA STATE FINANCIAL CORPORATION | a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general. 8. Learned senior counsel appearing for respondent No. 1 thus, emphasised that in the aforesaid given facts, no action under the SFC Act had been taken till that time, nor was the winding up proceedings commenced with the Official Liquidator being appointed. The object, it was submitted, was to associate the Official Liquidator with the sale. 9. Learned senior counsel also referred to Bank of Maharashtra vs. Pandurang Keshav Gorwardkar & Ors. [2013 (7) SCC 754 ], Laxmi Fibres Limited vs. Andhra Pradesh Industrial Development Corporation Ltd. and Ors. [2015 (16) SCC 464 ] and Pegasus Assets Reconstruction P. Ltd. vs. Haryana Concast Ltd. & Anr. [2016 (4) SCC 47 ] to advance the proposition that the ultimate object was only association of the Official Liquidator for purposes of distribution of the assets of company in liquidation in terms of section 529A of the Companies Act. 10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation. 11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act. 12. Learned senior counsel for respondent No. 1 fairly concedes that were any verified dues of the workmen to be paid, respondent No. 1 would be liable for the same to the extent of pari passu rights over the proceeds realised from respondent No.2. In fact, even the impugned order has issued a direction in terms of paragraph 4 that the sale proceeds are to be distributed in terms of Section 529A and Section 529 of the Companies Act. 13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned. | 0[ds]7. A perusal of the impugned order shows that the reasoning of the Division Bench is predicated on the judgment of this Court in Rajasthan State Financial Corporation and Anr. vs. Official Liquidator and Anr. [2005 (8) SCC 190 ].17. Thus, on the authorities what emerges is that once a winding-up proceeding has commenced and the Liquidator is put in charge of the assets of the company being wound up, the distribution of the proceeds of the sale of the assets held at the instance of the financial institutions coming under the Recovery of Debts Act or of financial corporations coming under the SFC Act, can only be with the association of the Official Liquidator and under the supervision of the Company Court. The right of a financial institution or of the Recovery Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general.10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation.11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act.13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned. | 0 | 3,455 | 991 | ### 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:
a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general. 8. Learned senior counsel appearing for respondent No. 1 thus, emphasised that in the aforesaid given facts, no action under the SFC Act had been taken till that time, nor was the winding up proceedings commenced with the Official Liquidator being appointed. The object, it was submitted, was to associate the Official Liquidator with the sale. 9. Learned senior counsel also referred to Bank of Maharashtra vs. Pandurang Keshav Gorwardkar & Ors. [2013 (7) SCC 754 ], Laxmi Fibres Limited vs. Andhra Pradesh Industrial Development Corporation Ltd. and Ors. [2015 (16) SCC 464 ] and Pegasus Assets Reconstruction P. Ltd. vs. Haryana Concast Ltd. & Anr. [2016 (4) SCC 47 ] to advance the proposition that the ultimate object was only association of the Official Liquidator for purposes of distribution of the assets of company in liquidation in terms of section 529A of the Companies Act. 10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation. 11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act. 12. Learned senior counsel for respondent No. 1 fairly concedes that were any verified dues of the workmen to be paid, respondent No. 1 would be liable for the same to the extent of pari passu rights over the proceeds realised from respondent No.2. In fact, even the impugned order has issued a direction in terms of paragraph 4 that the sale proceeds are to be distributed in terms of Section 529A and Section 529 of the Companies Act. 13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned.
### Response:
0
### Explanation:
7. A perusal of the impugned order shows that the reasoning of the Division Bench is predicated on the judgment of this Court in Rajasthan State Financial Corporation and Anr. vs. Official Liquidator and Anr. [2005 (8) SCC 190 ].17. Thus, on the authorities what emerges is that once a winding-up proceeding has commenced and the Liquidator is put in charge of the assets of the company being wound up, the distribution of the proceeds of the sale of the assets held at the instance of the financial institutions coming under the Recovery of Debts Act or of financial corporations coming under the SFC Act, can only be with the association of the Official Liquidator and under the supervision of the Company Court. The right of a financial institution or of the Recovery Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general.10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation.11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act.13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned.
|
Orissa Cement, Limited Vs. Adikanda Sahu | Gajendragadkar, J.1. This appeal by special leave arises out of the proceedings taken by Orissa Cement, Ltd., Rajggangpur, Orissa (hereinafter called the appellant), against Sri Adikanda Sahu (hereinafter called the respondent) under S.33 of the Industrial Disputes Act. The respondent was a fitter employed by the appellant. It appears that on 6 January, 1955 he went into the time office and abused Mr. S. K. Misra, the labour officer of the appellant, in filthy language. The said officer reported the matter to the management that very day. The respondent was called by the resident engineer of the appellant and was asked to give explanation. In reply the respondent denied the statements of the labour officer. On 8 January the respondent raised slogans against the secretary and the labour officer and in the same evening he again abused Mr. Misra in filthy language. On 8 January the labour officer made another complaint against the respondent. In regard to this complaint also the respondents explanation was called for and duly received. The resident engineer rejected the explanations given by the respondent and on his report the appellant made an application against the respondent under S.33 of the Industrial Disputes Act for permission to dismiss him.2. The tribunal found that the labour officer who was a respectable young man had been abused by the respondent in vulgar and filthy language and that this conduct of the respondent was undesirable and was subversive of discipline. The tribunal rejected the respondents explanation and accepted the labour officers account without any reservation. Nevertheless, it felt that the respondent should not be sacked as he was a young man of immature and impulsive age and should be given a chance to correct himself. In coming to this conclusion the tribunal was influenced by the consideration that the respondent had offered an apology to Mr. Misra. On this view the tribunal rejected the appellants application. Against this order the appellant appealed to the Labour Appellate Tribunal. The Appellate Tribunal took the view that no enquiry had been made by the appellant before it applied under S.33 of the Act, and so it confirmed the finding of the tribunal that the respondent should not be dismissed having regard to the mitigating circumstances mentioned by the tribunal in its award. That is why the Appellate Tribunal dismissed the appeal preferred by the appellant. It is against this order that the present appeal has been filed.3. It is clear that both the tribunals have agreed in holding that the respondent had used filthy language in abusing the appellants labour officer. They, however, thought that the respondent had offered an apology and that would meet the ends of justice in present case. In our opinion, this view is obviously erroneous. It is clear that the respondent in fact has not offered an unconditional apology as has been assumed by the tribunals below. He has merely stated that in discharging faithfully his duties as a trade unionist, he might have been misunderstood by Mr. Misra and he has added that if Mr. Misra felt offended by his behaviour, he would express his regret for all that had happened. It is obvious that the expression of regret by the respondent is conditional and cannot be taken as an unconditional apology. Besides, the words used by the respondent in abusing the labour officer not once but twice without any provocation are absolutely indecent and vulgar. In such a case, if the appellant took the view that it should not keep in its employment a person who was capable of such indecent conduct, it would be justified in dismissing him. The jurisdiction of the tribunals in dealing with the application made by the employer under S. 33 is limited, and as we have already observed, on the merits the concurrent finding has been in favour of the appellant. That being so, we do not see how the order passed by the tribunals below dismissing the appellants application can be justified. This is a clear case where the appellants prayer for permission to dismiss the respondent should have been granted. If no enquiry was held by the appellant, it has produced evidence before the tribunal to support its case, and as we have just indicated, that case had been held proved by both the tribunals.4. | 1[ds]In our opinion, this view is obviously erroneous. It is clear that the respondent in fact has not offered an unconditional apology as has been assumed by the tribunals below. He has merely stated that in discharging faithfully his duties as a trade unionist, he might have been misunderstood by Mr. Misra and he has added that if Mr. Misra felt offended by his behaviour, he would express his regret for all that had happened. It is obvious that the expression of regret by the respondent is conditional and cannot be taken as an unconditional apology. Besides, the words used by the respondent in abusing the labour officer not once but twice without any provocation are absolutely indecent and vulgar. In such a case, if the appellant took the view that it should not keep in its employment a person who was capable of such indecent conduct, it would be justified in dismissing him. The jurisdiction of the tribunals in dealing with the application made by the employer under S. 33 is limited, and as we have already observed, on the merits the concurrent finding has been in favour of the appellant. That being so, we do not see how the order passed by the tribunals below dismissing the appellants application can be justified. This is a clear case where the appellants prayer for permission to dismiss the respondent should have been granted. If no enquiry was held by the appellant, it has produced evidence before the tribunal to support its case, and as we have just indicated, that case had been held proved by both the tribunals. | 1 | 779 | 295 | ### 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:
Gajendragadkar, J.1. This appeal by special leave arises out of the proceedings taken by Orissa Cement, Ltd., Rajggangpur, Orissa (hereinafter called the appellant), against Sri Adikanda Sahu (hereinafter called the respondent) under S.33 of the Industrial Disputes Act. The respondent was a fitter employed by the appellant. It appears that on 6 January, 1955 he went into the time office and abused Mr. S. K. Misra, the labour officer of the appellant, in filthy language. The said officer reported the matter to the management that very day. The respondent was called by the resident engineer of the appellant and was asked to give explanation. In reply the respondent denied the statements of the labour officer. On 8 January the respondent raised slogans against the secretary and the labour officer and in the same evening he again abused Mr. Misra in filthy language. On 8 January the labour officer made another complaint against the respondent. In regard to this complaint also the respondents explanation was called for and duly received. The resident engineer rejected the explanations given by the respondent and on his report the appellant made an application against the respondent under S.33 of the Industrial Disputes Act for permission to dismiss him.2. The tribunal found that the labour officer who was a respectable young man had been abused by the respondent in vulgar and filthy language and that this conduct of the respondent was undesirable and was subversive of discipline. The tribunal rejected the respondents explanation and accepted the labour officers account without any reservation. Nevertheless, it felt that the respondent should not be sacked as he was a young man of immature and impulsive age and should be given a chance to correct himself. In coming to this conclusion the tribunal was influenced by the consideration that the respondent had offered an apology to Mr. Misra. On this view the tribunal rejected the appellants application. Against this order the appellant appealed to the Labour Appellate Tribunal. The Appellate Tribunal took the view that no enquiry had been made by the appellant before it applied under S.33 of the Act, and so it confirmed the finding of the tribunal that the respondent should not be dismissed having regard to the mitigating circumstances mentioned by the tribunal in its award. That is why the Appellate Tribunal dismissed the appeal preferred by the appellant. It is against this order that the present appeal has been filed.3. It is clear that both the tribunals have agreed in holding that the respondent had used filthy language in abusing the appellants labour officer. They, however, thought that the respondent had offered an apology and that would meet the ends of justice in present case. In our opinion, this view is obviously erroneous. It is clear that the respondent in fact has not offered an unconditional apology as has been assumed by the tribunals below. He has merely stated that in discharging faithfully his duties as a trade unionist, he might have been misunderstood by Mr. Misra and he has added that if Mr. Misra felt offended by his behaviour, he would express his regret for all that had happened. It is obvious that the expression of regret by the respondent is conditional and cannot be taken as an unconditional apology. Besides, the words used by the respondent in abusing the labour officer not once but twice without any provocation are absolutely indecent and vulgar. In such a case, if the appellant took the view that it should not keep in its employment a person who was capable of such indecent conduct, it would be justified in dismissing him. The jurisdiction of the tribunals in dealing with the application made by the employer under S. 33 is limited, and as we have already observed, on the merits the concurrent finding has been in favour of the appellant. That being so, we do not see how the order passed by the tribunals below dismissing the appellants application can be justified. This is a clear case where the appellants prayer for permission to dismiss the respondent should have been granted. If no enquiry was held by the appellant, it has produced evidence before the tribunal to support its case, and as we have just indicated, that case had been held proved by both the tribunals.4.
### Response:
1
### Explanation:
In our opinion, this view is obviously erroneous. It is clear that the respondent in fact has not offered an unconditional apology as has been assumed by the tribunals below. He has merely stated that in discharging faithfully his duties as a trade unionist, he might have been misunderstood by Mr. Misra and he has added that if Mr. Misra felt offended by his behaviour, he would express his regret for all that had happened. It is obvious that the expression of regret by the respondent is conditional and cannot be taken as an unconditional apology. Besides, the words used by the respondent in abusing the labour officer not once but twice without any provocation are absolutely indecent and vulgar. In such a case, if the appellant took the view that it should not keep in its employment a person who was capable of such indecent conduct, it would be justified in dismissing him. The jurisdiction of the tribunals in dealing with the application made by the employer under S. 33 is limited, and as we have already observed, on the merits the concurrent finding has been in favour of the appellant. That being so, we do not see how the order passed by the tribunals below dismissing the appellants application can be justified. This is a clear case where the appellants prayer for permission to dismiss the respondent should have been granted. If no enquiry was held by the appellant, it has produced evidence before the tribunal to support its case, and as we have just indicated, that case had been held proved by both the tribunals.
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A. L. A. Firm Vs. Commissioner of Income Tax | * From these observations, the High Court inferred (at p. 147 of 41 ITR) "It is obvious from the above that the privilege of valuing the opening and closing stocks in a consistent manner is available only to continuing business and that it cannot be adopted where the business comes to an end and the stock-in-trade has to be disposed of in order to determine the exact position of the business on the date of closure." * The, second consideration which prevailed with the High Court is reflected in the following passage from the judgment (at p. 149 of 41 ITR) "It seems to us that none of these cases has any application to the facts of the present case. There is no authority directly in point dealing with this question, where a partnership concern dissolves its business in the course of the accounting year, what is the basis on which the stock-in-trade has to be valued as on the date of dissolution. We have accordingly to deal with the matter on first principles The case of a firm which goes into liquidation forms a close parallel to the present case. In such a case all the stock-in-trade and other assets of the business will have to be sold and their value realised. It cannot be controverted that it is only by doing so that the true state of the profits or losses of the business can be arrived at. The position is not very different when the partnership ceases to exist in the course of the accounting year. The fact that Ramachari, one of the ex-partners, took over the entire stock and continued to run the business on his own, is not relevant at all, when we consider the profits or losses of the partnership which has come to an end. It should, therefore, follow that in order to arrive at the correct picture of the trading results of the partnership on the date when it ceases to function, the valuation of the stock in hand should be made on the basis of the prevailing market price." * We are not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case. Even in a continuing business, the valuation at market value is permissible only when it is less than cost ; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost. But, in either event, it is allowed to be done because its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or Under valuation is possible. In this context, it is difficult to see how valuation, at other than cost, can be justified on the principle of Ahmedabad New Cotton Mills case [1930] LR 57 IA 21 (PC) ; 1930 AIR(PC) 56We, however, find substance in the second consideration that prevailed with the High Court. The decision in Muhammad Ussain Sahib v. S. N. Abdul Gaffoor Sahib, 1950 AIR(Mad) 758 ; 1950 (1) MLJ 81 correctly sets out the mode of taking accounts regarding the assets of a firm. While the valuation of assets during the subsistence of the partnership would be immaterial and could even be notional, the position at the point of dissolution is totally different (at p. 759) "But the situation is totally different when the firm is dissolved or when a partner retires. The settlement of his account must be not on notional basis but on a real basis, that is every asset of the partnership should be converted into money and the account of each partner settled on that basis .... The assets have to be valued, of course, on the basis of the market value on the date of the dissolution ......" * This applies equally well to assets which constitute stock-in-trade. There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real basis and not at cost or at their other value appearing in the books. A short passage from Pickles on Accountancy (Third Edn.), p. 650, will make this clear "In the event of the accounts being drawn up to the date of death or retirement, no departure from the normal procedure arises, but it will be necessary to see that every revaluation required by the terms of the partnership agreement is made. It has been laid down judicially that, in the absence of contrary agreement, all assets and liabilities must be taken at fair value not merely a book value basis, thus involving recording entries for both appreciation and depreciation of assets and liabilities. This rule is applicable, not withstanding the omission of a particular item from the books, e.g., investments, goodwill (Cruikshank v. Sutherland 1922 (92) LJ(Ch) 136 (HL)). Obviously, the net effect of the revaluation will be profit or loss divisible in the agreed profit or loss-sharing ratios." * The real rights of the partners cannot be mutually adjusted on any other basis. This is what happened in G. R. Ramachari and Co. 1961 (41) ITR 142 (Mad) . Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for there to contend that the valuation should be on some other basis. Once this principle is applied and the stock-in-trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible. For these reasons, we agree with the answer given by the High Court to the second question as well | 0[ds]Though the High Court has dealt with this question at some length, we do not think any answer to this question can or need be furnished by us for the following reasons. First, the assessee has not been able to place before us the circular of the Board on which reliance is placed. It is not clear whether it is circular or a communication of some other nature. Second, the circular, to judge from its purport set out in the High Courts judgment, seems to have been to the effect that the surplus arising from the sale of properties acquired by a money-lender in the course of his business would be in the nature of capital gains and not of income. Obviously, such a proposition could not have been intended as a broad or general proposition of law, for the nature of the surplus on sale of assets would depend on the nature of the asset sold and this, in turn, would depend on the facts and circumstances of each case. In this case, no material was placed at any stage to show that the assets in question constituted the capital assets of the firm and not its stock-in-trade. Third, the plea of the assessee which was in issue all through was that there was no sale of assets by the firm when its assets are distributed among its partners and that no profits-whether capital or revenue-could be said to arise to the firm merely because, at the time of the dissolution, the firm revalued its assets on the basis of the market value or any other basis, for adjusting the mutual rights and liabilities of the partners on the dissolution of the firm. The terms of the circular as set out in the order of the High Court cannot, therefore, be of any assistance to the assessee in answering the issues in this case. We, therefore, do not answer the third question posed by the TribunalTurning now to the first question, the relevant facts have already been noticed. The following relevant and material facts, viz., (i) the dissolution of the firm, (ii) the revaluation of its assets, (iii) the distribution thereof among two groups of its partners, and (iv) the division and crediting of the surplus on revaluation to the partners accounts were not only reflected in the balance-sheet, the profit and loss account and the profit and loss adjustment account but were also mentioned in the statement filed before the Income-tax Officer along with theare not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case. Even in a continuing business, the valuation at market value is permissible only when it is less than cost ; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost. But, in either event, it is allowed to be done because its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or Under valuation isreal rights of the partners cannot be mutually adjusted on any other basis. This is what happened in G. R. Ramachari and Co. 1961 (41) ITR 142 (Mad) . Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for there to contend that the valuation should be on some other basis. Once this principle is applied and the stock-in-trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible. For these reasons, we agree with the answer given by the High Court to the second question as well | 0 | 10,356 | 740 | ### 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:
* From these observations, the High Court inferred (at p. 147 of 41 ITR) "It is obvious from the above that the privilege of valuing the opening and closing stocks in a consistent manner is available only to continuing business and that it cannot be adopted where the business comes to an end and the stock-in-trade has to be disposed of in order to determine the exact position of the business on the date of closure." * The, second consideration which prevailed with the High Court is reflected in the following passage from the judgment (at p. 149 of 41 ITR) "It seems to us that none of these cases has any application to the facts of the present case. There is no authority directly in point dealing with this question, where a partnership concern dissolves its business in the course of the accounting year, what is the basis on which the stock-in-trade has to be valued as on the date of dissolution. We have accordingly to deal with the matter on first principles The case of a firm which goes into liquidation forms a close parallel to the present case. In such a case all the stock-in-trade and other assets of the business will have to be sold and their value realised. It cannot be controverted that it is only by doing so that the true state of the profits or losses of the business can be arrived at. The position is not very different when the partnership ceases to exist in the course of the accounting year. The fact that Ramachari, one of the ex-partners, took over the entire stock and continued to run the business on his own, is not relevant at all, when we consider the profits or losses of the partnership which has come to an end. It should, therefore, follow that in order to arrive at the correct picture of the trading results of the partnership on the date when it ceases to function, the valuation of the stock in hand should be made on the basis of the prevailing market price." * We are not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case. Even in a continuing business, the valuation at market value is permissible only when it is less than cost ; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost. But, in either event, it is allowed to be done because its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or Under valuation is possible. In this context, it is difficult to see how valuation, at other than cost, can be justified on the principle of Ahmedabad New Cotton Mills case [1930] LR 57 IA 21 (PC) ; 1930 AIR(PC) 56We, however, find substance in the second consideration that prevailed with the High Court. The decision in Muhammad Ussain Sahib v. S. N. Abdul Gaffoor Sahib, 1950 AIR(Mad) 758 ; 1950 (1) MLJ 81 correctly sets out the mode of taking accounts regarding the assets of a firm. While the valuation of assets during the subsistence of the partnership would be immaterial and could even be notional, the position at the point of dissolution is totally different (at p. 759) "But the situation is totally different when the firm is dissolved or when a partner retires. The settlement of his account must be not on notional basis but on a real basis, that is every asset of the partnership should be converted into money and the account of each partner settled on that basis .... The assets have to be valued, of course, on the basis of the market value on the date of the dissolution ......" * This applies equally well to assets which constitute stock-in-trade. There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real basis and not at cost or at their other value appearing in the books. A short passage from Pickles on Accountancy (Third Edn.), p. 650, will make this clear "In the event of the accounts being drawn up to the date of death or retirement, no departure from the normal procedure arises, but it will be necessary to see that every revaluation required by the terms of the partnership agreement is made. It has been laid down judicially that, in the absence of contrary agreement, all assets and liabilities must be taken at fair value not merely a book value basis, thus involving recording entries for both appreciation and depreciation of assets and liabilities. This rule is applicable, not withstanding the omission of a particular item from the books, e.g., investments, goodwill (Cruikshank v. Sutherland 1922 (92) LJ(Ch) 136 (HL)). Obviously, the net effect of the revaluation will be profit or loss divisible in the agreed profit or loss-sharing ratios." * The real rights of the partners cannot be mutually adjusted on any other basis. This is what happened in G. R. Ramachari and Co. 1961 (41) ITR 142 (Mad) . Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for there to contend that the valuation should be on some other basis. Once this principle is applied and the stock-in-trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible. For these reasons, we agree with the answer given by the High Court to the second question as well
### Response:
0
### Explanation:
Though the High Court has dealt with this question at some length, we do not think any answer to this question can or need be furnished by us for the following reasons. First, the assessee has not been able to place before us the circular of the Board on which reliance is placed. It is not clear whether it is circular or a communication of some other nature. Second, the circular, to judge from its purport set out in the High Courts judgment, seems to have been to the effect that the surplus arising from the sale of properties acquired by a money-lender in the course of his business would be in the nature of capital gains and not of income. Obviously, such a proposition could not have been intended as a broad or general proposition of law, for the nature of the surplus on sale of assets would depend on the nature of the asset sold and this, in turn, would depend on the facts and circumstances of each case. In this case, no material was placed at any stage to show that the assets in question constituted the capital assets of the firm and not its stock-in-trade. Third, the plea of the assessee which was in issue all through was that there was no sale of assets by the firm when its assets are distributed among its partners and that no profits-whether capital or revenue-could be said to arise to the firm merely because, at the time of the dissolution, the firm revalued its assets on the basis of the market value or any other basis, for adjusting the mutual rights and liabilities of the partners on the dissolution of the firm. The terms of the circular as set out in the order of the High Court cannot, therefore, be of any assistance to the assessee in answering the issues in this case. We, therefore, do not answer the third question posed by the TribunalTurning now to the first question, the relevant facts have already been noticed. The following relevant and material facts, viz., (i) the dissolution of the firm, (ii) the revaluation of its assets, (iii) the distribution thereof among two groups of its partners, and (iv) the division and crediting of the surplus on revaluation to the partners accounts were not only reflected in the balance-sheet, the profit and loss account and the profit and loss adjustment account but were also mentioned in the statement filed before the Income-tax Officer along with theare not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case. Even in a continuing business, the valuation at market value is permissible only when it is less than cost ; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost. But, in either event, it is allowed to be done because its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or Under valuation isreal rights of the partners cannot be mutually adjusted on any other basis. This is what happened in G. R. Ramachari and Co. 1961 (41) ITR 142 (Mad) . Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for there to contend that the valuation should be on some other basis. Once this principle is applied and the stock-in-trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible. For these reasons, we agree with the answer given by the High Court to the second question as well
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Gunwant Kaur & Others Vs. Municipal Committee, Bhatinda & Others | should be acquired for the purpose for which it was intended to be acquired.The appellants contended that they had no opportunity of making their representations, for the notification gave no notice to them that the land in their occupation was intended to be acquired.11. In summarily rejecting the petition two grounds were given in the order of the High Court - first that the Collector was satisfied that the true area of the land demarcated corresponded to the area notified and that it had been demarcated on the ground with as much accuracy as was reasonably possible, and the second, that the question raised was one of fact. The writ petition filed before the High Court was not in the nature of an appeal against the decision of the Collector.The Collector was acting for and on behalf of the State Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collectors opinion. Again the jurisdiction of the Collector depended upon the issue of a valid notification and the mere fact that the Collector was satisfied that the true area of land demarcated "Corresponded to the area notified" - whatever that expression may mean - did not prevent the owners of the lands from contending before the High Court that they had no opportunity of making their representations under Section 5-A of the Act and of satisfying the Collector that their lands should not be acquired.The three appellants had applied to the Local Municipal Committee for constructing buildings on their plots and Municipal Committee had sanctioned the constructions. Prima facie, this may indicate that in the view of the Municipal Committee the lands on which the buildings were allowed to be constructed were not within the area notified for acquisition or would not be needed for the road.12. The Government of Punjab did not publish any plans, nor did they inform the owners of the lands in the locality to which the notification under Section 4 of the Land Acquisition Act related, that plans were available for inspection at the office of the Collector: the owners of the lands were only informed that some parts of Khasra No. 2030 belonging to the owners were required. There is no evidence on the record that the entire area of khasra No. 2030 was intended to be acquired. The notification did not, therefore, give due notice to the owners that their lands were intended to be notified for acquisition. In paragraph 2 of the petition it is also averred that there was no due publication of the notification in the locality by the Collector.13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.17. It was urged by Mr. Hazarnavis on behalf of the Municipal Committee, Bhatinda, that the three appellants were purchasers of the lands claimed by them after the notification under Section 4 was issued and they had no right to challenge the issue of the notification. If, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands. | 1[ds]7. The notification under Section 4 is the foundation of a proceeding for acquisition of land. In the present case the notification under Section 4 did not set out with precision the parts of Khasra No. 2030 belonging to different owners sought to be acquired. The notification merely set out the areas intended to be acquired out of Khasra No. 2030 but the location of the areas under Khasra No. 2030 could not thereby be ascertained. No plans demarcating the land to be acquired were published or made available to the owners of the land.In the present case on order under Section 17 (4) was issued by the Government of Punjab. The owners of the lands were, therefore, entitled to be heard on the question whether their lands or any land in the locality should be acquired for the purpose for which it was intended to be acquired.In summarily rejecting the petition two grounds were given in the order of the High Courtfirst that the Collector was satisfied that the true area of the land demarcated corresponded to the area notified and that it had been demarcated on the ground with as much accuracy as was reasonably possible, and the second, that the question raised was one of fact. The writ petition filed before the High Court was not in the nature of an appeal against the decision of theCollector was acting for and on behalf of the State Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collectorsis no evidence on the record that the entire area of khasra No. 2030 was intended to be acquired. The notification did not, therefore, give due notice to the owners that their lands were intended to be notified for acquisition. In paragraph 2 of the petition it is also averred that there was no due publication of the notification in the locality by the Collector.13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separateIf, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands. | 1 | 2,629 | 898 | ### Instruction:
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should be acquired for the purpose for which it was intended to be acquired.The appellants contended that they had no opportunity of making their representations, for the notification gave no notice to them that the land in their occupation was intended to be acquired.11. In summarily rejecting the petition two grounds were given in the order of the High Court - first that the Collector was satisfied that the true area of the land demarcated corresponded to the area notified and that it had been demarcated on the ground with as much accuracy as was reasonably possible, and the second, that the question raised was one of fact. The writ petition filed before the High Court was not in the nature of an appeal against the decision of the Collector.The Collector was acting for and on behalf of the State Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collectors opinion. Again the jurisdiction of the Collector depended upon the issue of a valid notification and the mere fact that the Collector was satisfied that the true area of land demarcated "Corresponded to the area notified" - whatever that expression may mean - did not prevent the owners of the lands from contending before the High Court that they had no opportunity of making their representations under Section 5-A of the Act and of satisfying the Collector that their lands should not be acquired.The three appellants had applied to the Local Municipal Committee for constructing buildings on their plots and Municipal Committee had sanctioned the constructions. Prima facie, this may indicate that in the view of the Municipal Committee the lands on which the buildings were allowed to be constructed were not within the area notified for acquisition or would not be needed for the road.12. The Government of Punjab did not publish any plans, nor did they inform the owners of the lands in the locality to which the notification under Section 4 of the Land Acquisition Act related, that plans were available for inspection at the office of the Collector: the owners of the lands were only informed that some parts of Khasra No. 2030 belonging to the owners were required. There is no evidence on the record that the entire area of khasra No. 2030 was intended to be acquired. The notification did not, therefore, give due notice to the owners that their lands were intended to be notified for acquisition. In paragraph 2 of the petition it is also averred that there was no due publication of the notification in the locality by the Collector.13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.17. It was urged by Mr. Hazarnavis on behalf of the Municipal Committee, Bhatinda, that the three appellants were purchasers of the lands claimed by them after the notification under Section 4 was issued and they had no right to challenge the issue of the notification. If, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands.
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7. The notification under Section 4 is the foundation of a proceeding for acquisition of land. In the present case the notification under Section 4 did not set out with precision the parts of Khasra No. 2030 belonging to different owners sought to be acquired. The notification merely set out the areas intended to be acquired out of Khasra No. 2030 but the location of the areas under Khasra No. 2030 could not thereby be ascertained. No plans demarcating the land to be acquired were published or made available to the owners of the land.In the present case on order under Section 17 (4) was issued by the Government of Punjab. The owners of the lands were, therefore, entitled to be heard on the question whether their lands or any land in the locality should be acquired for the purpose for which it was intended to be acquired.In summarily rejecting the petition two grounds were given in the order of the High Courtfirst that the Collector was satisfied that the true area of the land demarcated corresponded to the area notified and that it had been demarcated on the ground with as much accuracy as was reasonably possible, and the second, that the question raised was one of fact. The writ petition filed before the High Court was not in the nature of an appeal against the decision of theCollector was acting for and on behalf of the State Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collectorsis no evidence on the record that the entire area of khasra No. 2030 was intended to be acquired. The notification did not, therefore, give due notice to the owners that their lands were intended to be notified for acquisition. In paragraph 2 of the petition it is also averred that there was no due publication of the notification in the locality by the Collector.13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separateIf, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands.
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Eshwarappa Vs. State Of Karnataka | and Sarpina (A-2) since 2-3 years. He also stated that because of the illicit relationship, the appellant was always living in the house of Sarpina (A-2). A panchayat had even taken place, according to this witness, in which the appellant had given an assurance that he would end his illicit relationship. On the date of the incident, the witness claims to have seen the deceased and her parents near the shop of one master at about 10.30 a.m. 12. Rangaswamy (PW-11) is the real brother of (PW-1) and brother-in-law of (PW-5). He too has supported the prosecution case in regard to the illicit intimacy between the appellant and Sarpina (A-2). He has also supported the prosecution version for demand for dowry. Chandrashekhar (PW-12) is also the maternal uncle of the deceased has supported the prosecution case and had visited the matrimonial house of the deceased to resolve the dispute between the couple. K.B. Shekharappa (PW-14) is one of the panchas who too has supported the prosecution case and clearly deposed that he attended the panchayat in which the appellant’s illicit affair with Sarpina (A-2) was discussed. The panchas had advised the appellant to end his illegal relationship. 13. The only other witness whose deposition is relevant is Dr. Nagesh S. Adiga (PW-15) who conducted the post-mortem examination of the deceased and found ligature marks around her neck. The witness in his deposition has said: “On further examination of the body, I did not notice any external injuries except for the ligature mark around the neck.The ligature mark was oblique and was extending across the front of the neck from the angle of left jaw and measured 1.5 cms in width and 16 cms in length and it was situated just 2.5 cms below the right mastoid with knot mark measuring 2.5 cms over the left mastoid.” 14. The witness has described the cause of death nearly 10 days after the post-mortem examination in reply to a communication received from the Circle Police Inspector in the following words: “(i) The cause of death is due to constriction force obliquely around neck leading to asphyxia and shock is most probably due to hanging.(ii) The cause of death is ante mortem in nature and death has occurred in less than 24 hours.(iii) The ligature mark is ante-mortem in nature.” 15. In the light of the evidence on record, it was argued on behalf of the appellant that there was no eye witness to the occurrence and the entire prosecution case was based on circumstantial evidence. It was also submitted that the circumstances sought to be relied upon do not form a complete chain so as to lead the Court to an irresistible conclusion that the death of the deceased was homicidal and the appellant was responsible for the same. In particular, reliance was placed by learned counsel for the appellant upon the deposition of the doctor to suggest that the death could have been caused by hanging.16. The Trial Court and so also the High Court has rejected the story of suicide by the deceased and in our opinion rightly so, for reasons more than one. Firstly, because the death in the case at hand occurred because of strangulation/constriction force around the neck leading to asphyxia and shock as observed by the doctor which is possible not necessarily by hanging, although the doctor has opined it could be caused probably by hanging also. Secondly, because if death had occurred because of hanging, she would have been discovered by the witnesses in a hanging position, unless of course somebody had upon seeing her hanging, brought her down and placed the body on the ground or the rope by which she hung herself had itself snapped in which event there would have been a rope partly tied to the branch of the tamarind tree and partly around her neck with a noose which the witnesses say was not there. Thirdly, because it is nobody’s case that she was carrying a rope with herself when she was seen going towards the field. The presence of the rope and the heap of stones before the branch was obviously a make-believe situation created by the appellant, who was seen by the witness, returning from the field. Fourthly, because there was no immediate provocation for the deceased to take the step to commit suicide. All that she wanted was money from her husband to take her child to the hospital for treatment. Besides, the parents of the deceased were also present in the village around the time the deceased went towards the field which only shows that there was no intense or great provocation that could have led her to commit suicide. Fifthly, because the classic signs of death by hanging as reported in Modi’s Medical Jurisprudence and Toxicology (23rd Edition) like face being usually pale; saliva dribbling out of the mouth down on the chin and chest; Neck Stretched and elongated in fresh bodies; Ligature mark being oblique, non-continuous and placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard yellow and parchment like; Abrasions and ecchymoses around the edges of the ligature mark, subcutaneous tissues under the mark being white or glistening; carotid arteries, internal coats being ruptured; fracture or dislocation of the cervical vertebrae were all conspicuously absent in the case at hand as is evident from the post-mortem report prepared by the doctor.17. In the totality of the circumstances and having regard to the nature of the evidence which the courts below have found credible on all material aspects of the prosecution case, we do not see any compelling reason to interfere with the view taken by the Trial Court as affirmed by the High Court. The only modification no matter inconsequential in the facts and circumstances of the case that we may make is the setting aside of the conviction of the appellant for the offence punishable under Section 498A Indian Penal Code. | 1[ds]16. The Trial Court and so also the High Court has rejected the story of suicide by the deceased and in our opinion rightly so, for reasons more than one. Firstly, because the death in the case at hand occurred because of strangulation/constriction force around the neck leading to asphyxia and shock as observed by the doctor which is possible not necessarily by hanging, although the doctor has opined it could be caused probably by hanging also. Secondly, because if death had occurred because of hanging, she would have been discovered by the witnesses in a hanging position, unless of course somebody had upon seeing her hanging, brought her down and placed the body on the ground or the rope by which she hung herself had itself snapped in which event there would have been a rope partly tied to the branch of the tamarind tree and partly around her neck with a noose which the witnesses say was not there. Thirdly, because it iscase that she was carrying a rope with herself when she was seen going towards the field. The presence of the rope and the heap of stones before the branch was obviously a make-believe situation created by the appellant, who was seen by the witness, returning from the field. Fourthly, because there was no immediate provocation for the deceased to take the step to commit suicide. All that she wanted was money from her husband to take her child to the hospital for treatment. Besides, the parents of the deceased were also present in the village around the time the deceased went towards the field which only shows that there was no intense or great provocation that could have led her to commit suicide. Fifthly, because the classic signs of death by hanging as reported inMedical Jurisprudence and Toxicology (23rd Edition) like face being usually pale; saliva dribbling out of the mouth down on the chin and chest; Neck Stretched and elongated in fresh bodies; Ligature mark being oblique, non-continuous and placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard yellow and parchment like; Abrasions and ecchymoses around the edges of the ligature mark, subcutaneous tissues under the mark being white or glistening; carotid arteries, internal coats being ruptured; fracture or dislocation of the cervical vertebrae were all conspicuously absent in the case at hand as is evident from the post-mortem report prepared by the doctor.17. In the totality of the circumstances and having regard to the nature of the evidence which the courts below have found credible on all material aspects of the prosecution case, we do not see any compelling reason to interfere with the view taken by the Trial Court as affirmed by the High Court. The only modification no matter inconsequential in the facts and circumstances of the case that we may make is the setting aside of the conviction of the appellant for the offence punishable under Section 498A Indian Penal Code. | 1 | 3,341 | 545 | ### Instruction:
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and Sarpina (A-2) since 2-3 years. He also stated that because of the illicit relationship, the appellant was always living in the house of Sarpina (A-2). A panchayat had even taken place, according to this witness, in which the appellant had given an assurance that he would end his illicit relationship. On the date of the incident, the witness claims to have seen the deceased and her parents near the shop of one master at about 10.30 a.m. 12. Rangaswamy (PW-11) is the real brother of (PW-1) and brother-in-law of (PW-5). He too has supported the prosecution case in regard to the illicit intimacy between the appellant and Sarpina (A-2). He has also supported the prosecution version for demand for dowry. Chandrashekhar (PW-12) is also the maternal uncle of the deceased has supported the prosecution case and had visited the matrimonial house of the deceased to resolve the dispute between the couple. K.B. Shekharappa (PW-14) is one of the panchas who too has supported the prosecution case and clearly deposed that he attended the panchayat in which the appellant’s illicit affair with Sarpina (A-2) was discussed. The panchas had advised the appellant to end his illegal relationship. 13. The only other witness whose deposition is relevant is Dr. Nagesh S. Adiga (PW-15) who conducted the post-mortem examination of the deceased and found ligature marks around her neck. The witness in his deposition has said: “On further examination of the body, I did not notice any external injuries except for the ligature mark around the neck.The ligature mark was oblique and was extending across the front of the neck from the angle of left jaw and measured 1.5 cms in width and 16 cms in length and it was situated just 2.5 cms below the right mastoid with knot mark measuring 2.5 cms over the left mastoid.” 14. The witness has described the cause of death nearly 10 days after the post-mortem examination in reply to a communication received from the Circle Police Inspector in the following words: “(i) The cause of death is due to constriction force obliquely around neck leading to asphyxia and shock is most probably due to hanging.(ii) The cause of death is ante mortem in nature and death has occurred in less than 24 hours.(iii) The ligature mark is ante-mortem in nature.” 15. In the light of the evidence on record, it was argued on behalf of the appellant that there was no eye witness to the occurrence and the entire prosecution case was based on circumstantial evidence. It was also submitted that the circumstances sought to be relied upon do not form a complete chain so as to lead the Court to an irresistible conclusion that the death of the deceased was homicidal and the appellant was responsible for the same. In particular, reliance was placed by learned counsel for the appellant upon the deposition of the doctor to suggest that the death could have been caused by hanging.16. The Trial Court and so also the High Court has rejected the story of suicide by the deceased and in our opinion rightly so, for reasons more than one. Firstly, because the death in the case at hand occurred because of strangulation/constriction force around the neck leading to asphyxia and shock as observed by the doctor which is possible not necessarily by hanging, although the doctor has opined it could be caused probably by hanging also. Secondly, because if death had occurred because of hanging, she would have been discovered by the witnesses in a hanging position, unless of course somebody had upon seeing her hanging, brought her down and placed the body on the ground or the rope by which she hung herself had itself snapped in which event there would have been a rope partly tied to the branch of the tamarind tree and partly around her neck with a noose which the witnesses say was not there. Thirdly, because it is nobody’s case that she was carrying a rope with herself when she was seen going towards the field. The presence of the rope and the heap of stones before the branch was obviously a make-believe situation created by the appellant, who was seen by the witness, returning from the field. Fourthly, because there was no immediate provocation for the deceased to take the step to commit suicide. All that she wanted was money from her husband to take her child to the hospital for treatment. Besides, the parents of the deceased were also present in the village around the time the deceased went towards the field which only shows that there was no intense or great provocation that could have led her to commit suicide. Fifthly, because the classic signs of death by hanging as reported in Modi’s Medical Jurisprudence and Toxicology (23rd Edition) like face being usually pale; saliva dribbling out of the mouth down on the chin and chest; Neck Stretched and elongated in fresh bodies; Ligature mark being oblique, non-continuous and placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard yellow and parchment like; Abrasions and ecchymoses around the edges of the ligature mark, subcutaneous tissues under the mark being white or glistening; carotid arteries, internal coats being ruptured; fracture or dislocation of the cervical vertebrae were all conspicuously absent in the case at hand as is evident from the post-mortem report prepared by the doctor.17. In the totality of the circumstances and having regard to the nature of the evidence which the courts below have found credible on all material aspects of the prosecution case, we do not see any compelling reason to interfere with the view taken by the Trial Court as affirmed by the High Court. The only modification no matter inconsequential in the facts and circumstances of the case that we may make is the setting aside of the conviction of the appellant for the offence punishable under Section 498A Indian Penal Code.
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16. The Trial Court and so also the High Court has rejected the story of suicide by the deceased and in our opinion rightly so, for reasons more than one. Firstly, because the death in the case at hand occurred because of strangulation/constriction force around the neck leading to asphyxia and shock as observed by the doctor which is possible not necessarily by hanging, although the doctor has opined it could be caused probably by hanging also. Secondly, because if death had occurred because of hanging, she would have been discovered by the witnesses in a hanging position, unless of course somebody had upon seeing her hanging, brought her down and placed the body on the ground or the rope by which she hung herself had itself snapped in which event there would have been a rope partly tied to the branch of the tamarind tree and partly around her neck with a noose which the witnesses say was not there. Thirdly, because it iscase that she was carrying a rope with herself when she was seen going towards the field. The presence of the rope and the heap of stones before the branch was obviously a make-believe situation created by the appellant, who was seen by the witness, returning from the field. Fourthly, because there was no immediate provocation for the deceased to take the step to commit suicide. All that she wanted was money from her husband to take her child to the hospital for treatment. Besides, the parents of the deceased were also present in the village around the time the deceased went towards the field which only shows that there was no intense or great provocation that could have led her to commit suicide. Fifthly, because the classic signs of death by hanging as reported inMedical Jurisprudence and Toxicology (23rd Edition) like face being usually pale; saliva dribbling out of the mouth down on the chin and chest; Neck Stretched and elongated in fresh bodies; Ligature mark being oblique, non-continuous and placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard yellow and parchment like; Abrasions and ecchymoses around the edges of the ligature mark, subcutaneous tissues under the mark being white or glistening; carotid arteries, internal coats being ruptured; fracture or dislocation of the cervical vertebrae were all conspicuously absent in the case at hand as is evident from the post-mortem report prepared by the doctor.17. In the totality of the circumstances and having regard to the nature of the evidence which the courts below have found credible on all material aspects of the prosecution case, we do not see any compelling reason to interfere with the view taken by the Trial Court as affirmed by the High Court. The only modification no matter inconsequential in the facts and circumstances of the case that we may make is the setting aside of the conviction of the appellant for the offence punishable under Section 498A Indian Penal Code.
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M/s. Taxi Owners United Transport Vs. State Transport Authority (Orissa) | MISRA, J.1. These connected appeals by special leave are directed against the judgment of the High Court of Orissa dated 14th of April, 1977 dismissing the writ petition filed by the appellant against the order of the State Transport Appellate Tribunal.2. The appellant was issued three particular stage carriage permits in respect of three vehicles authorising him to ply the said vehicles on the specified routes within the district of Koraput in the State of Orissa. In all the three cases the route terminated at a point near the border between the State of Orissa and Madhya Pradesh. The appellant, however, without applying for extension of his permits or for fresh inter State permits from the State Transport Authority, Orissa started plying his vehicles to different points in the State of Madhya Pradesh. The appellant was covering distance of 44 kms., 21 kms. and 44 kms. respectively in the State of Madhya Pradesh. When this case came to the knowledge of the Regional Transport Authority, Koraput, it issued notices to the appellant to discontinue plying of vehicles covered under the permits on inter-State routes in Madhya Pradesh failing which the permits would be cancelled.3. The stand of the appellant was that he was plying his vehicles on the authority of the P. St. S. permits granted by the Regional Transport Authority, Raipur in the State of Madhya Pradesh and hence be has not violated any condition of the permits or any provision of the Motor Vehicles Act. The appellant filed appeals before the State Transport Appellate Tribunal, Orissa against the aforesaid order. The appeals were, however, dismissed as not maintainable inasmuch as the impugned order neither amounted to revocation of permits nor attachment of a condition to the permits granted to the appellant within the meaning of any of the clauses of S. 64 of the Motor Vehicles Act. On merits also the Tribunal held that the use of the vehicles on inter-State routes in Madhya Pradesh region not being authorised by the permits, the Regional Transport Authority, Koraput was entitled under Section 60 (1) (b) to cancel the permits granted by it.4. The appellant sought to challenge the order of the Tribunal by filing a writ petition before the High Court of Orissa, The High Court, however, dismissed the petition on the ground that the case made out by the appellant did not come within the purview of Art. 226 (1) of the Constitution and consequently, the writ petition had abated pursuant to S. 58 of the Constitution (Forty-second Amendment) Act. The High Court upheld the view of the Tribunal that the order of the Regional Transport Authority, Koraput in no. manner amounted to changing the conditions of the permits or adding a new condition therein. It further held that the cause of action would arise to the appellant only after cancellation of the permits.5. The appellant has now come to this Court by special leave.6. A preliminary objection has been raised by the counsel for the respondent that the permits having already expired, the appeals have become infructuous. We find considerable, force in this objection. The appeals can be dismissed on this ground alone. The learned counsel for the appellant however, contended that he had been running the vehicles in Madhya Pradesh region on the strength of a permit granted by the Transport Authority of that region and thus he has not violated any condition of the permits issued by the Regional Transport Authority, Koraput and the proposed action of the Regional Transport Authority to cancel the permits cannot be sustained. We find no. force in this contention. The permits had been granted by the Regional Transport Authority, Koraput, Orissa to the appellant for use of particular vehicles only on the routes in Orissa and, therefore, use of the vehicles across Orissa borders on inter-State routes without their being authorised under the conditions of the permits is against law. Such user not only violated the conditions of the permits but was also a subterfuge in not obtaining the inter-State permits which the State Transport Authority in Orissa alone was competent to grant. The plying of the vehicles on the basis of permits granted by the Orissa Regional Transport Authority, Koraput in Madhya Pradesh would contravene the mandatory provisions of S. 45 of the Motor Vehicles Act. The appellant could not ply his vehicles within the territory of Madhya Pradesh on inter-State routes on the strength of the permits granted by the Transport Authority of Madhya Pradesh either. What cannot be done directly cannot be permitted to be done indirectly, is a well-recognised principle of law. | 0[ds]6. A preliminary objection has been raised by the counsel for the respondent that the permits having already expired, the appeals have become infructuous. We find considerable, force in this objection. The appeals can be dismissed on this ground alone. The learned counsel for the appellant however, contended that he had been running the vehicles in Madhya Pradesh region on the strength of a permit granted by the Transport Authority of that region and thus he has not violated any condition of the permits issued by the Regional Transport Authority, Koraput and the proposed action of the Regional Transport Authority to cancel the permits cannot be sustained. We find no. force in this contention. The permits had been granted by the Regional Transport Authority, Koraput, Orissa to the appellant for use of particular vehicles only on the routes in Orissa and, therefore, use of the vehicles across Orissa borders onroutes without their being authorised under the conditions of the permits is against law. Such user not only violated the conditions of the permits but was also a subterfuge in not obtaining thepermits which the State Transport Authority in Orissa alone was competent to grant. The plying of the vehicles on the basis of permits granted by the Orissa Regional Transport Authority, Koraput in Madhya Pradesh would contravene the mandatory provisions of S. 45 of the Motor Vehicles Act. The appellant could not ply his vehicles within the territory of Madhya Pradesh onroutes on the strength of the permits granted by the Transport Authority of Madhya Pradesh either. What cannot be done directly cannot be permitted to be done indirectly, is aprinciple of law. | 0 | 837 | 302 | ### Instruction:
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MISRA, J.1. These connected appeals by special leave are directed against the judgment of the High Court of Orissa dated 14th of April, 1977 dismissing the writ petition filed by the appellant against the order of the State Transport Appellate Tribunal.2. The appellant was issued three particular stage carriage permits in respect of three vehicles authorising him to ply the said vehicles on the specified routes within the district of Koraput in the State of Orissa. In all the three cases the route terminated at a point near the border between the State of Orissa and Madhya Pradesh. The appellant, however, without applying for extension of his permits or for fresh inter State permits from the State Transport Authority, Orissa started plying his vehicles to different points in the State of Madhya Pradesh. The appellant was covering distance of 44 kms., 21 kms. and 44 kms. respectively in the State of Madhya Pradesh. When this case came to the knowledge of the Regional Transport Authority, Koraput, it issued notices to the appellant to discontinue plying of vehicles covered under the permits on inter-State routes in Madhya Pradesh failing which the permits would be cancelled.3. The stand of the appellant was that he was plying his vehicles on the authority of the P. St. S. permits granted by the Regional Transport Authority, Raipur in the State of Madhya Pradesh and hence be has not violated any condition of the permits or any provision of the Motor Vehicles Act. The appellant filed appeals before the State Transport Appellate Tribunal, Orissa against the aforesaid order. The appeals were, however, dismissed as not maintainable inasmuch as the impugned order neither amounted to revocation of permits nor attachment of a condition to the permits granted to the appellant within the meaning of any of the clauses of S. 64 of the Motor Vehicles Act. On merits also the Tribunal held that the use of the vehicles on inter-State routes in Madhya Pradesh region not being authorised by the permits, the Regional Transport Authority, Koraput was entitled under Section 60 (1) (b) to cancel the permits granted by it.4. The appellant sought to challenge the order of the Tribunal by filing a writ petition before the High Court of Orissa, The High Court, however, dismissed the petition on the ground that the case made out by the appellant did not come within the purview of Art. 226 (1) of the Constitution and consequently, the writ petition had abated pursuant to S. 58 of the Constitution (Forty-second Amendment) Act. The High Court upheld the view of the Tribunal that the order of the Regional Transport Authority, Koraput in no. manner amounted to changing the conditions of the permits or adding a new condition therein. It further held that the cause of action would arise to the appellant only after cancellation of the permits.5. The appellant has now come to this Court by special leave.6. A preliminary objection has been raised by the counsel for the respondent that the permits having already expired, the appeals have become infructuous. We find considerable, force in this objection. The appeals can be dismissed on this ground alone. The learned counsel for the appellant however, contended that he had been running the vehicles in Madhya Pradesh region on the strength of a permit granted by the Transport Authority of that region and thus he has not violated any condition of the permits issued by the Regional Transport Authority, Koraput and the proposed action of the Regional Transport Authority to cancel the permits cannot be sustained. We find no. force in this contention. The permits had been granted by the Regional Transport Authority, Koraput, Orissa to the appellant for use of particular vehicles only on the routes in Orissa and, therefore, use of the vehicles across Orissa borders on inter-State routes without their being authorised under the conditions of the permits is against law. Such user not only violated the conditions of the permits but was also a subterfuge in not obtaining the inter-State permits which the State Transport Authority in Orissa alone was competent to grant. The plying of the vehicles on the basis of permits granted by the Orissa Regional Transport Authority, Koraput in Madhya Pradesh would contravene the mandatory provisions of S. 45 of the Motor Vehicles Act. The appellant could not ply his vehicles within the territory of Madhya Pradesh on inter-State routes on the strength of the permits granted by the Transport Authority of Madhya Pradesh either. What cannot be done directly cannot be permitted to be done indirectly, is a well-recognised principle of law.
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6. A preliminary objection has been raised by the counsel for the respondent that the permits having already expired, the appeals have become infructuous. We find considerable, force in this objection. The appeals can be dismissed on this ground alone. The learned counsel for the appellant however, contended that he had been running the vehicles in Madhya Pradesh region on the strength of a permit granted by the Transport Authority of that region and thus he has not violated any condition of the permits issued by the Regional Transport Authority, Koraput and the proposed action of the Regional Transport Authority to cancel the permits cannot be sustained. We find no. force in this contention. The permits had been granted by the Regional Transport Authority, Koraput, Orissa to the appellant for use of particular vehicles only on the routes in Orissa and, therefore, use of the vehicles across Orissa borders onroutes without their being authorised under the conditions of the permits is against law. Such user not only violated the conditions of the permits but was also a subterfuge in not obtaining thepermits which the State Transport Authority in Orissa alone was competent to grant. The plying of the vehicles on the basis of permits granted by the Orissa Regional Transport Authority, Koraput in Madhya Pradesh would contravene the mandatory provisions of S. 45 of the Motor Vehicles Act. The appellant could not ply his vehicles within the territory of Madhya Pradesh onroutes on the strength of the permits granted by the Transport Authority of Madhya Pradesh either. What cannot be done directly cannot be permitted to be done indirectly, is aprinciple of law.
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Union of India Vs. Alapan Bandyopadhyay | courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except – (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the exclusion jurisdiction clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:- The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. (Emphasis supplied). When once a Constitution Bench of this court declared the law that all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls, it is impermissible to make any further construction on the said issue. The expression all decisions of these Tribunals used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi. 17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumars case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motianis case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus: The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal), by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal. In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction. | 0[ds]According to us the said decision and the contention founded on the said decision are relevant only for the purpose of deciding the correctness of the order of transfer passed by the Principal Bench of the Tribunal in exercise of the power under Section 25 of the Act and not for deciding the jurisdictional High Court qua the order in P.T.No.215/2021.Nevertheless, we think it unnecessary to delve into all such contentions based on such decisions as Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the respondent, fairly submitted that he would not contest on that issue and left it to us to decide. Obviously, the High Court found undue haste in the matter of disposal of P.T.No.215/2021 and that also persuaded the High Court to make such scathing observations and remarks in fact, against the Principal Bench of the Tribunal. But then, a perusal of the materials on record would reveal that WPCT No.78/2021 filed before the High Court that culminated in the impugned judgment was also passed with almost equal speed. That apart, both the order in P.T.No.215/2021 and the final judgment and order in WPCT No.78/2021 were passed, respectively, by the Tribunal and the High Court, after hearing both parties. The fact that the impugned judgment contain observations and remarks amounting to disparagement and as such, scathing in effect is not in dispute. We do not think it necessary to reproduce them in this judgment in the stated circumstances. However, contextually it will be apposite to refer to paragraphs 11 to 13 of the decision of this Court in Braj Kishore Thakur v. Union of India (AIR 1997 SC 1157 ). It was held therein thus:11. No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher Courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not in hands by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a Judicial Officer against whom aspersions are made in the judgment could not appear before the higher Court to defend his order. Judges of higher Courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary.12. A quarter of a century ago Gajendragadkar, J. (as he then was) speaking for a Bench of three Judges of this Court, in the context of dealing with the strictures passed by High Court against one of its Subordinate Judicial Officers (Suggesting that his decision was based on extraneous considerations) stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary more so because the Judge against whom the imputations are made has no remedy in law to vindicate his position [Ishwari Prasad Mishra v. Mohammad Isa, (1963) 3 SCR 722 : (AIR 1963 SC 1728 )]. This Court had to repeat such words on subsequent occasions also. In K.P. Tiwari v. State of M.P., AIR 1994 SC 1031 , this Court came across certain observations of a learned Judge of the High Court casting strictures against a Judge of the subordinate judiciary and the Court used the opportunity to remind all concerned that using intemperate language and castigating strictures at the lower levels would only cause public respect in judiciary to dwindle. The following observations of this Court need repetition in this context:The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err……………………………………… it has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive.13. Recently, we had to say the same thing though in different words in Kashi Nath Roy v. State of Bihar (1996) 4 JT (SC) 605: (1996 AIR SCW 2098) in a similar situation. We then said thus (Para 7 of AIR):It cannot be forgotten that in our system, like elsewhere, appellate and revisional Courts have been set up on the pre-supposition that lower Courts would in some measure of cases go wrong in decision- making, both on facts as also on law, and they have been knit-up to correct those orders. The human element, in justicing being an important element, computer-like functioning cannot be expected of the Courts: however, hard they may try and keep themselves precedent- trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior Court, it is functionally required to correct that error and may, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction is not in keeping with institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds.On our careful scanning of the circumstances and situations obtained in this case we are persuaded to think that no exceptional ground(s) exists in the case on hand to make scathing and disparaging remarks and observations against the Principal Bench of the Tribunal. At the same time, it is to be noted that the said order was, in fact, passed by the Chairman of the Tribunal on a formal application moved by the appellants herein and after hearing both parties. As a matter of law the Chairman could pass an order of transfer under Section 25 of the Act suo motu. Hence, the said observations and remarks, in troth, ought not to have been made against the Chairman of the Tribunal. To observe sobriety, we say that the remarks made by the High Court were unwarranted, uncalled for and avoidable being sharp reaction on unfounded assumptions. Ergo, we have no hesitation to hold that they were wholly unnecessary for the purpose of deciding the correctness or otherwise of the order of transfer. Hence, they are liable to be expunged. We do so.We may hasten to note that all those judgments/orders, except one, viz., the decision reported in 2019 SCC Online Del 11541 (Bhavesh Motiani vs. Union of India), were passed by the Principal Bench of the Tribunal rejecting applications for transfer of pending Original Applications in the exercise of power under Section 25 of the Act. Hence, they are not significant in deciding the stated moot question. We will refer to in Bhavesh Motianis case a little later.10. We have carefully considered the contentions raised on behalf of the respondent by placing reliance on the aforesaid decisions of this Court. In Kusum Ingots case (supra), the question involved was whether the seat of Parliament would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India when the constitutionality of a Parliamentary Act is under challenge. After referring to the expression cause of action for territorial jurisdiction to entertain a writ petition, in terms of Article 226(2) of the Constitution, this Court held thus:18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor.20. A distinction between a legislation and executive action should be borne in mind while determining the said question.21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.11. In Nawal Kishores case, the issue concerned was with respect to the jurisdiction of a particular High Court against an authority/person residing outside its territorial jurisdiction. That question was considered with reference to Article 226(2) of the Constitution. It was held that writ could be issued if cause of action wholly or partially had arisen within the territorial jurisdiction of High Court concerned even if the person or authority against whom writ is sought for is located outside its territorial jurisdiction. However, it was held that in order to maintain such a writ petition, the petitioner had to establish that such respondents infringed his legal rights within the limits of the High Courts jurisdiction. In Navin Chandra N. Majithias case, again the jurisdictional issue was considered with reference to Article 226(2) of the Constitution and held that the High Court concerned would have jurisdiction to entertain a writ petition if any part of the cause of action arose within its territorial limits even though the seat of government or authority or residence of persons against whom direction, order or writ is sought to be issued is not within its territory.12. On a careful scanning of the aforesaid decisions relied on by the respondent and consideration of the nature of the question that calls for decision in the case on hand and also what we have observed earlier, we find that the above decisions have no applicability for deciding the stated moot question. We will further elaborate the non-applicability of those decisions in the course of further consideration of the matter. We are not dealing with the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal in this Judgement. Even if the bundle of facts constituting cause of action for filing the said O.A. confers on the Kolkata Bench of the Tribunal the jurisdiction to entertain the same, the question here is whether its transfer from the said Bench to the Principal Bench vide order dated 20.10.2021 in P.T.No.215/2021 by the Chairman of the Central Administrative Tribunal (the Principal Bench) in invocation of powers under Section 25 of the Act falls within the territorial jurisdiction and power of superintendence of the High Court at Calcutta and the fate of the challenge against the order in WPCT No.78/2021 dated 29.10.2021 would depend upon its answer. We may hasten to state that if the challenge in the writ petition was against an order passed by the Kolkata Bench of the Tribunal in O.A.No.1619/2021 there can be no doubt with respect to the jurisdiction of the High Court at Calcutta.We do not think it necessary to elaborate on this issue as we have already stated that we are confining our consideration only to the specific question whether High Court at Calcutta was having jurisdiction to entertain the challenge against the order in P.T.No.215/2021.A scanning of the impugned order itself would reveal that the High Court perfectly understood and treated the order impugned before it in WPCT No.78/2021, being the order in P.T.No.215/2021, as an order passed by the Principal Bench of the Tribunal at New Delhi, transferring O.A.No.1619/2021. This, in our opinion, is the correct understanding of the said order, as it was passed in P.T.No.215/2021, filed by the Appellant herein who was also a party to O.A.No.1619/2021, calling for an order in exercise of the power under Section 25 of the Act, before the Principal Bench. This aspect is very clear from paragraphs 22, 23, 24, and 25 of the impugned judgement of the High Court.15. When once the High Court found the order impugned as one passed by the Principal Bench we have no hesitation to hold that the High Court should have confined its consideration firstly, to decide its own territorial jurisdiction for exercising the power of judicial review over the order dated 22.10.2021 passed by the Principal Bench in P.T.No.215/2021 in the correct perspective, without reference to the bundle of facts constituting the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal founded on the cause of action referred to in Rule 6(2) of the Procedure Rules that decides the place of filing of an O.A.. To wit, those bundle of facts which would be necessary for the applicant to prove, if traversed, in order to support the right to a judgment from that Bench of the Tribunal. In such circumstances, the question of infringement or otherwise of the right of the respondent herein to litigate before the Kolkata Bench of the Tribunal could not have been gone into, on merits, without deciding the seminal question whether the High Court of Calcutta itself had jurisdiction to undertake judicial review of the order passed by the Chairman in exercise of power under Section 25 at the Principal seat of the Tribunal at New Delhi we do not have any hesitation in holding that the High Court at Calcutta could not have entertained the Writ Petition.16. As noted earlier the order of transfer of O.A.No.1619/2021 passed in P.T.No.215/2021 was understood and dealt with by the High Court as an order passed by the Principal Bench of the Tribunal. Section 5(7) of the Act makes it clear that the Bench of the Central Administrative Tribunal at New Delhi is known as the Principal Bench. It is in this context and the relevant factors as also the situations likely to cause conflicting decisions by different High Courts referred to hereinbefore in the preceding paragraphs of this judgment that the decision of this Court in L. Chandra Kumars case assumes relevance. Earlier, we made a brief reference about the law laid down in the said decision. One of the broad issues that was considered by the Constitution Bench was as follows:Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause(d) of clause(2) of Article 323 A or sub- clause(d)of clause(3) of Article 323 B of the Constitution, to totally exclude the jurisdiction of all courts, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause(1) of Article 323A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution? During such consideration the constitutional validity of Section 28 of the Act, the exclusion of jurisdiction clause was also considered by this court. It reads thus:-S.28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except –(a) the Supreme Court; or(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force,shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the exclusion jurisdiction clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:-The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.When once a Constitution Bench of this court declared the law that all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls, it is impermissible to make any further construction on the said issue. The expression all decisions of these Tribunals used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi.17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumars case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motianis case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus:The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal), by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal.In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction. | 0 | 6,964 | 3,981 | ### Instruction:
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courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except – (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the exclusion jurisdiction clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:- The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. (Emphasis supplied). When once a Constitution Bench of this court declared the law that all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls, it is impermissible to make any further construction on the said issue. The expression all decisions of these Tribunals used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi. 17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumars case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motianis case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus: The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal), by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal. In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction.
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considered by this court. It reads thus:-S.28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except –(a) the Supreme Court; or(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force,shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the exclusion jurisdiction clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:-The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.When once a Constitution Bench of this court declared the law that all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls, it is impermissible to make any further construction on the said issue. The expression all decisions of these Tribunals used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi.17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumars case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motianis case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus:The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal), by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal.In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction.
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Kiran Singh And Others Vs. Chaman Paswan And Others | to Section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorizing the Court of second appeal to set aside findings of fact and to rehear the appeal itself on those questions.We must accordingly hold that an appellate Court has no power under Section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that Section.15. So far, the definition of "prejudice" has been negative in terms --- that it cannot be mere change of forum or mere error in the decision on the merits. What then is positively prejudice for the purpose of Section 11? That is a question which has agitated Courts in India ever since the enactment of the Section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within Section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso, and there is no right of appeal against its decision. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case.No purpose, however, is served by attempting to enumerate exhaustively all possible cases of prejudice which might come under Section 11 of the Suits Valuation Act. The jurisdiction that is conferred on appellate Courts under that Section is an equitable one, to be exercised when there has been an erronuess assumption of jurisdiction by a Subordinate Court as a result of over-valuation or under-valuation and a consequential failure of justice. It is neither possible not even desirable define such a jurisdiction closely, or confine it within stated bounds. It can only be predicated of it that it is in the nature of a revisonal jurisdiction to be exercised with caution and for the ends of justice, whenever the, facts and situation calls for it. Whether there has been prejudice or not, is accordingly a matter to be determined on the facts of each case.16. We have not to see whether the appellant have suffered any prejudice by season of the under valuation. They were the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial it is they who appealed to the District Court as they were bound to on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of law if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or under-valuation, should be treated as a nullity, then of course, they would not be stopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under Section 11 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to the prejudice of their opponents, who had acquiesced therein?17. There is considerable authority in the Indian Courts that clauses (a) and (b) of Section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or". If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from ones own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it.Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under Section 11 of the Suits Valuation Act is correct. | 0[ds]It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pose any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District, Court of Monghyr was coram non judice, and that its judgment and decree would befrom supporting the contention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity, these observations show that an objection of the kind now put forward being highly technical in character should not be entertained if not raised in the Court of First Instance. We are therefore of opinion that the decree and judgement of the District Court, Monghyr, cannot be regarded as aargument proceeds on a misconception. The right of appeal is no doubt a substantive right and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgement of the Subordinate Court. The law does provide an appeal against that judgement to the District Court, and the plaintiffs have exercise that right. Indeed, the under-valuation has enlarged the appellants right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit ha been correctly valued, by reason of the under-valuation they obtained right to two appeals one to the District Court and another to the High Court. The complaint of the appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of the Suit Valuationour judgment the opinion expressed in these decisions is correct.Indeed, it is impossible on the language of the Section to come to different conclusion. If the fact of an appeal being heard by a Subordinate Court of District Court where the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the Sub-ordinate Court or the District Court must, without more, be liable to be set aside,and the words "unless the over-valuation or under-valuation thereof has prejudicially the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court not in all cases and as a mother of course, but only if prejudice such as is mentioned in the Section results. And the prejudice envisaged by that Section therefore must be something other than the appeal being heard in a different forum.A contrary conclusion will lead to the surprising result that the Section was enacted with the object of curing defects of jurisdiction arising by reason of overvaluation or under-valuation, but that, in fact this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the Section is something different from the fact of the appeal having been regard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimatelyit does, then it will be obligatory on the Court bearing the second appeal to examine the evidence in full and decide whetherthe conclusions reached by the lower appellate Court areright. If it agrees with those findings, then it will affirm the judgment, if it does not, it will reverse it. That means that the Court of second appeal is virtually in the position of a court of first appeal.The language of Section 11 of the Suits Valuation Act is plainly against such a view. It provides that over valuation or under valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been, caused by over-valuation or under-valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the Section.It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellant Court has recorded findings and to reversemust accordingly hold that an appellate Court has no power under Section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of thatis neither possible not even desirable define such a jurisdiction closely, or confine it within stated bounds. It can only be predicated of it that it is in the nature of a revisonal jurisdiction to be exercised with caution and for the ends of justice, whenever the, facts and situation calls for it. Whether there has been prejudice or not, is accordingly a matter to be determined on the facts of each case.16. We have not to see whether the appellant have suffered any prejudice by season of the under valuation. They were the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial it is they who appealed to the District Court as they were bound to on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of law if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or under-valuation, should be treated as a nullity, then of course, they would not be stopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under Section 11 of the Suits Valuation Act.There is considerable authority in the Indian Courts that clauses (a) and (b) of Section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or". If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from ones own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it.Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under Section 11 of the Suits Valuation Act is correct. | 0 | 5,273 | 1,626 | ### 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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to Section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorizing the Court of second appeal to set aside findings of fact and to rehear the appeal itself on those questions.We must accordingly hold that an appellate Court has no power under Section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that Section.15. So far, the definition of "prejudice" has been negative in terms --- that it cannot be mere change of forum or mere error in the decision on the merits. What then is positively prejudice for the purpose of Section 11? That is a question which has agitated Courts in India ever since the enactment of the Section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within Section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso, and there is no right of appeal against its decision. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case.No purpose, however, is served by attempting to enumerate exhaustively all possible cases of prejudice which might come under Section 11 of the Suits Valuation Act. The jurisdiction that is conferred on appellate Courts under that Section is an equitable one, to be exercised when there has been an erronuess assumption of jurisdiction by a Subordinate Court as a result of over-valuation or under-valuation and a consequential failure of justice. It is neither possible not even desirable define such a jurisdiction closely, or confine it within stated bounds. It can only be predicated of it that it is in the nature of a revisonal jurisdiction to be exercised with caution and for the ends of justice, whenever the, facts and situation calls for it. Whether there has been prejudice or not, is accordingly a matter to be determined on the facts of each case.16. We have not to see whether the appellant have suffered any prejudice by season of the under valuation. They were the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial it is they who appealed to the District Court as they were bound to on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of law if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or under-valuation, should be treated as a nullity, then of course, they would not be stopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under Section 11 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to the prejudice of their opponents, who had acquiesced therein?17. There is considerable authority in the Indian Courts that clauses (a) and (b) of Section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or". If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from ones own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it.Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under Section 11 of the Suits Valuation Act is correct.
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appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court not in all cases and as a mother of course, but only if prejudice such as is mentioned in the Section results. And the prejudice envisaged by that Section therefore must be something other than the appeal being heard in a different forum.A contrary conclusion will lead to the surprising result that the Section was enacted with the object of curing defects of jurisdiction arising by reason of overvaluation or under-valuation, but that, in fact this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the Section is something different from the fact of the appeal having been regard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimatelyit does, then it will be obligatory on the Court bearing the second appeal to examine the evidence in full and decide whetherthe conclusions reached by the lower appellate Court areright. If it agrees with those findings, then it will affirm the judgment, if it does not, it will reverse it. That means that the Court of second appeal is virtually in the position of a court of first appeal.The language of Section 11 of the Suits Valuation Act is plainly against such a view. It provides that over valuation or under valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been, caused by over-valuation or under-valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the Section.It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellant Court has recorded findings and to reversemust accordingly hold that an appellate Court has no power under Section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of thatis neither possible not even desirable define such a jurisdiction closely, or confine it within stated bounds. It can only be predicated of it that it is in the nature of a revisonal jurisdiction to be exercised with caution and for the ends of justice, whenever the, facts and situation calls for it. Whether there has been prejudice or not, is accordingly a matter to be determined on the facts of each case.16. We have not to see whether the appellant have suffered any prejudice by season of the under valuation. They were the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial it is they who appealed to the District Court as they were bound to on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of law if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or under-valuation, should be treated as a nullity, then of course, they would not be stopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under Section 11 of the Suits Valuation Act.There is considerable authority in the Indian Courts that clauses (a) and (b) of Section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or". If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under Section 11(1)(b) to raise the objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from ones own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it.Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under Section 11 of the Suits Valuation Act is correct.
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Raj Rajendra Malojirao Shitole Vs. State of Madhya Bharat | functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation.--For the purposes of this clause. the Constituent Assembly of the Dominion of India includes-- (i) the members chosen to represent any State or other territory for which representation is provided under clause (2), and (ii) the members chosen to fill casual vacancies in the said Assembly." 6. The provision made in this article in unambiguous terms makes the body. functioning as the Constituent Assembly, whether constituted perfectly or imperfectly and whatever its membership on the date immediately before the commencement of the Constitution, as the provisional Parliament and vests it with all the functions and duties conferred by the provisions of the Constitution on the Parliament. The President was given power under the provisions of this article to add members to this body to give representation to certain States who were not previously represented, and it was specifically prescribed that if there are any vacancies then the vacancies could be filled up and the members returned to fill these vacancies will be considered members of the provisional Parliament. These specific provisions are indicative of the fact that the Constitution-makers, in enacting this article, took notice of the factual existence of certain bodies without concerning themselves with the question whether they had been validly constituted under the Constitution that brought them into being. Article 382 of the Constitution is similarly worded. It provides that until the House or Houses of the Legislature of each State specified in Part A of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the House or Houses of the Legislature of the corresponding Province functioning immediately before the commencement of this Constitution shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of such State. Article 385 is in exact conformity with the two earlier articles. It provides that-"Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." 7. The whole intent and purpose of these articles was to give recognition to those bodies or authorities or House or Houses of Legislature which were actually functioning before the 26th of January, 1950, and to invest them with the powers conferred by the provisions of this Constitution. The Constitution-makers wanted to indicate the arrangements made by them for the interval with certain amount of definiteness in order to avoid any disputes during the interim period as to who the body or authority was, to exercise the powers conferred by the provisions of the Constitution. They therefore chose the formula that whichever body or authority or House or Houses of Legislature was actually functioning immediately before the commencement of the Constitution would be the body or authority or the House that would exercise the powers and perform the duties conferred by the provisions of this Constitution on the House, body or authority specified in the Constitution. They did not take any risk on this question and the bodies actually functioning were, like persona designata, invested with powers conferred by the Constitution. That being the scheme of this Part and that being also the clear and unambiguous language of article 385 it follows that the Madhya Bharat . Interim Legislative Assembly that was actually functioning on the 26h January, 1950, was invested by the Constitution of India with powers conferred by the provisions of the Constitution, irrespective of the fact whether it had been properly constituted in accordance with the terms of the covenant or not. The inquiry into this question thus became barred by adopting this procedure. Such a procedure was fully justified and was rounded upon considerations of policy and necessity for, the protection of the public and individuals whose interests may be affected thereby. It is manifest that endless confusion would have resulted if the Constitution had not adopted that formula and had not barred an inquiry into all questions as to the original formation of such bodies by giving validity and recognition to those bodies or authorities as were actually functioning on the 26th of January, 1950. Not only did it give validity and recognition to those bodies which were in fact functioning. then but it also invested these designated bodies and authorities with powers conferred by the provisions of the Constitution itself. That being our view as to the true meaning and intent of the language employed in article 385 of the Constitution it follows that the contention raised by Mr. P.R. Das as to the defective formation of the Interim Legislative Assembly of Madhya Bharat has no validity. Even if that body was not formed in strict compliance with the provisions indicated in Schedule IV of the covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to, and conferred powers on, the Assembly under article 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the covenant which brought it into existence. The result therefore is that the only contention that Mr. P.R. Das argued before us cannot be sustained and it must be held that it is not well founded. 8. | 0[ds]Even if that body was not formed in strict compliance with the provisions indicated in Schedule IV of the covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to, and conferred powers on, the Assembly under article 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the covenant which brought it into existence. | 0 | 4,335 | 96 | ### 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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functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation.--For the purposes of this clause. the Constituent Assembly of the Dominion of India includes-- (i) the members chosen to represent any State or other territory for which representation is provided under clause (2), and (ii) the members chosen to fill casual vacancies in the said Assembly." 6. The provision made in this article in unambiguous terms makes the body. functioning as the Constituent Assembly, whether constituted perfectly or imperfectly and whatever its membership on the date immediately before the commencement of the Constitution, as the provisional Parliament and vests it with all the functions and duties conferred by the provisions of the Constitution on the Parliament. The President was given power under the provisions of this article to add members to this body to give representation to certain States who were not previously represented, and it was specifically prescribed that if there are any vacancies then the vacancies could be filled up and the members returned to fill these vacancies will be considered members of the provisional Parliament. These specific provisions are indicative of the fact that the Constitution-makers, in enacting this article, took notice of the factual existence of certain bodies without concerning themselves with the question whether they had been validly constituted under the Constitution that brought them into being. Article 382 of the Constitution is similarly worded. It provides that until the House or Houses of the Legislature of each State specified in Part A of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the House or Houses of the Legislature of the corresponding Province functioning immediately before the commencement of this Constitution shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of such State. Article 385 is in exact conformity with the two earlier articles. It provides that-"Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." 7. The whole intent and purpose of these articles was to give recognition to those bodies or authorities or House or Houses of Legislature which were actually functioning before the 26th of January, 1950, and to invest them with the powers conferred by the provisions of this Constitution. The Constitution-makers wanted to indicate the arrangements made by them for the interval with certain amount of definiteness in order to avoid any disputes during the interim period as to who the body or authority was, to exercise the powers conferred by the provisions of the Constitution. They therefore chose the formula that whichever body or authority or House or Houses of Legislature was actually functioning immediately before the commencement of the Constitution would be the body or authority or the House that would exercise the powers and perform the duties conferred by the provisions of this Constitution on the House, body or authority specified in the Constitution. They did not take any risk on this question and the bodies actually functioning were, like persona designata, invested with powers conferred by the Constitution. That being the scheme of this Part and that being also the clear and unambiguous language of article 385 it follows that the Madhya Bharat . Interim Legislative Assembly that was actually functioning on the 26h January, 1950, was invested by the Constitution of India with powers conferred by the provisions of the Constitution, irrespective of the fact whether it had been properly constituted in accordance with the terms of the covenant or not. The inquiry into this question thus became barred by adopting this procedure. Such a procedure was fully justified and was rounded upon considerations of policy and necessity for, the protection of the public and individuals whose interests may be affected thereby. It is manifest that endless confusion would have resulted if the Constitution had not adopted that formula and had not barred an inquiry into all questions as to the original formation of such bodies by giving validity and recognition to those bodies or authorities as were actually functioning on the 26th of January, 1950. Not only did it give validity and recognition to those bodies which were in fact functioning. then but it also invested these designated bodies and authorities with powers conferred by the provisions of the Constitution itself. That being our view as to the true meaning and intent of the language employed in article 385 of the Constitution it follows that the contention raised by Mr. P.R. Das as to the defective formation of the Interim Legislative Assembly of Madhya Bharat has no validity. Even if that body was not formed in strict compliance with the provisions indicated in Schedule IV of the covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to, and conferred powers on, the Assembly under article 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the covenant which brought it into existence. The result therefore is that the only contention that Mr. P.R. Das argued before us cannot be sustained and it must be held that it is not well founded. 8.
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0
### Explanation:
Even if that body was not formed in strict compliance with the provisions indicated in Schedule IV of the covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to, and conferred powers on, the Assembly under article 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the covenant which brought it into existence.
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SHRI DIGVIJAY WOOLLEN MILLS LTD Vs. MAHENDRA PRATAPRAI BUCH.. MAHARANA MILLS LTD. v. GOPALDAS LADHABHAI KAKKAD | Woollen Mills Ltd., appellant v. Shri Mahendra Prataprai Buch, respondent), the respondent ceased to be an employee on attaining the age of supreannuation after completing 19 years of service. The appellant-company calculated the amount of gratuity payable to him on the basis that fifteen days wages was half of the monthly wages last drawn by him. The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days wages worked out, accordingly, not by just taking half of his wages for month of 30 days or fixing his daily wages by dividing his monthly wages by 30. 3. The Controlling Authority under the Act accepted the respondents contention and his decision was affirmed by the appellate authority. A Division Bench of the Gujarat High Court as Ahmedabad summarily dismissed the petition u/Art. 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act. The ld. Judges however, gave reasons in support of the order made. The appeal before us is by special leave. 4. In C.A. No. 480 of 1977 Maharana Mills Ltd. (appellant) v. Shri Gopaldas Ladhabhai Kakkad, (respondent), the respondent resigned his job after a little over 22 years of service. The appellant-company paid him gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days wages on that basis. Here also, the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal. The Controlling Authority accepted the respondents contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case. In this case also, the Gujarat High Court summarily rejected the petition made by the appellant-company challenging the decision of the authorities under the Act. This appeal, however, is brought on a certificate granted by the High Court. In dismissing the petition in Digvijay Woollen Mills case, the Division Bench of the Gujarat High Court observed as follows : "The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis, at the rate of fifteen days wages for each year of service, the gratuity would be computed. In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month. He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages and dearness allowance are always fixed by taking into consideration this economic reality .... A worker gets full months wages not by remaining on duty for all the 30 days with a month but by remaining on work and doing duty for only 26 days. The other extra holidays may make some marginal variation into 25 working days, but all wage boards and wage fixing authorities or tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working day." 5. The views expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily, of course, a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employee who work for 26 days a month followed by the Gujarat High Court, cannot be called perverse. It is not necessary to consider whether another view is possible.The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse. Incidentlly, to indicate the treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth & General Mills Co. Ltd., Workmen 1969 2 SCR 107 which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award, schemes were framed relating to the payment of gratuity. The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows : "It was also urged by Mr. Ramamurthi that the expression average of the basic wage in the definition of wages in cl. 4 of the schemes is likely to create complications in the implementation of the schemes. He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression wages will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced. We do not think that there is any cause for such apprehension. The expression average of the basic wage can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. for the employers agree to this interpretation". 6. In the view we take, we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view of the other on the question involved in these appeals, also the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages u/s 4(2) of the Payment of Gratuity Act. | 0[ds]5. The views expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily, of course, a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employee who work for 26 days a month followed by the Gujarat High Court, cannot be called perverse. It is not necessary to consider whether another view is possible.The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse. Incidentlly, to indicate the treating monthly wages as wages for 26 working days is not anything unique or unknown,6. In the view we take, we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view of the other on the question involved in these appeals, also the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages u/s 4(2) of the Payment of Gratuity Act. | 0 | 1,415 | 249 | ### Instruction:
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Woollen Mills Ltd., appellant v. Shri Mahendra Prataprai Buch, respondent), the respondent ceased to be an employee on attaining the age of supreannuation after completing 19 years of service. The appellant-company calculated the amount of gratuity payable to him on the basis that fifteen days wages was half of the monthly wages last drawn by him. The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days wages worked out, accordingly, not by just taking half of his wages for month of 30 days or fixing his daily wages by dividing his monthly wages by 30. 3. The Controlling Authority under the Act accepted the respondents contention and his decision was affirmed by the appellate authority. A Division Bench of the Gujarat High Court as Ahmedabad summarily dismissed the petition u/Art. 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act. The ld. Judges however, gave reasons in support of the order made. The appeal before us is by special leave. 4. In C.A. No. 480 of 1977 Maharana Mills Ltd. (appellant) v. Shri Gopaldas Ladhabhai Kakkad, (respondent), the respondent resigned his job after a little over 22 years of service. The appellant-company paid him gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days wages on that basis. Here also, the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal. The Controlling Authority accepted the respondents contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case. In this case also, the Gujarat High Court summarily rejected the petition made by the appellant-company challenging the decision of the authorities under the Act. This appeal, however, is brought on a certificate granted by the High Court. In dismissing the petition in Digvijay Woollen Mills case, the Division Bench of the Gujarat High Court observed as follows : "The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis, at the rate of fifteen days wages for each year of service, the gratuity would be computed. In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month. He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages and dearness allowance are always fixed by taking into consideration this economic reality .... A worker gets full months wages not by remaining on duty for all the 30 days with a month but by remaining on work and doing duty for only 26 days. The other extra holidays may make some marginal variation into 25 working days, but all wage boards and wage fixing authorities or tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working day." 5. The views expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily, of course, a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employee who work for 26 days a month followed by the Gujarat High Court, cannot be called perverse. It is not necessary to consider whether another view is possible.The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse. Incidentlly, to indicate the treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth & General Mills Co. Ltd., Workmen 1969 2 SCR 107 which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award, schemes were framed relating to the payment of gratuity. The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows : "It was also urged by Mr. Ramamurthi that the expression average of the basic wage in the definition of wages in cl. 4 of the schemes is likely to create complications in the implementation of the schemes. He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression wages will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced. We do not think that there is any cause for such apprehension. The expression average of the basic wage can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. for the employers agree to this interpretation". 6. In the view we take, we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view of the other on the question involved in these appeals, also the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages u/s 4(2) of the Payment of Gratuity Act.
### Response:
0
### Explanation:
5. The views expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily, of course, a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employee who work for 26 days a month followed by the Gujarat High Court, cannot be called perverse. It is not necessary to consider whether another view is possible.The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse. Incidentlly, to indicate the treating monthly wages as wages for 26 working days is not anything unique or unknown,6. In the view we take, we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view of the other on the question involved in these appeals, also the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages u/s 4(2) of the Payment of Gratuity Act.
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CENTRAL BANK OF INDIA & ORS Vs. TARA CHAND | provision for situations similar to the one in the instant case. 32. In the absence of any particular provision for payment of pension to those who opted for BOBEVRS-2001 other than Regulation 11(ii) of the Scheme, we are once again left to fall back on the Pension Regulations, 1995, and the amended provisions of Regulation 28 which brings within the scope of Superannuation Pension employees who opted for the Voluntary Retirement Scheme, which will be clear from the Explanatory Memorandum. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping with Regulation 14 of the Pension Regulations, 1995. 33. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995, of the appellant Bank.? 15. The above judgment was subsequently followed in Regional Manager, Punjab National Bank and another vs. Dharam Pal Singh and Punjab National Bank and others vs. Ram Kishan (supra). 16. The judgment on which much reliance has been placed by the learned counsel for the respondent is Bank of India and another vs. K. Mohandas and others (supra). The issue arose for consideration in the above case has been noticed in paragraph 24 of the judgment, which is to the following effect: ?24. The principal question that falls for our determination is: whether the employees (having completed 20 years of service) of these banks (Bank of India, Punjab National Bank, Punjab & Sind Bank, Union Bank of India and United Bank of India) who had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of Pension Regulations, 1995?? 17. In the above case, the Scheme was noted as VRS 2000. Under the aforesaid Scheme eligibility was to employee who had rendered minimum of 15 years of service or completed 40 years of age. In the above case, the judgment of this Court in Bank of Baroda and others vs. Ganpat Singh Deora (supra) was relied by the Bank, which judgment was noticed and this Court laid down following in paragraphs 61 and 63: ?61. The observations made by this Court in Bank of Baroda (2009 (3) SCC 217 ) which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations, 1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. 63. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters.? 18. The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is not attracted.19. Dr. Singhvi has placed much reliance on the judgment of this Court in National Insurance Company Limited and another vs. Kirpal Singh, (2014) 5 SCC 189. In the above case, this Court had occasion to consider the SVRS Scheme, 2004. Under the General Insurance Business (Nationalisation) Act, 1972, the eligibility of the Scheme was confined to those employees who have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. Clause 6 of Scheme, 2004 subclause 1(c) provided that pension shall be payable as per the General Insurance (Employees?) Pension Scheme, 1995. The Scheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent | 1[ds]9. It is true that as per Clause 4 any employee who has 15 years of service or completed 40 years of age is eligible to apply for voluntary retirement under the Scheme. There is no dispute that the respondent was eligible to apply for voluntary retirement, otherbenefits under the Scheme have been extended to the respondent and only limited issue in the present appeal is entitlement of the respondent for pension. Clause 6(ii), which is relevant provision regarding entitlement of the claim provides that ?Pension (including commuted value of pension) as per Central Bank of India (Employees?) Pension Regulations, 1995……? Thus, payment of pension under the Scheme has to be as per Pension Regulations, 1995.Voluntary retirement in the case of respondent is not retirement which is covered within the definition of Clause 2(y) on strict interpretation of definition clause. Furthermore, as clear from the opening words, the said qualifying service is ?subject to the other conditions contained in Regulations?. Chapter V of the Regulations, 1995 deals with classes of pension. Different classes of pension include superannuation pension, pension on voluntary retirement, invalid pension, compassionate allowance, premature retirement pension and compulsory retirement pension. Classes of pension specifically defined in Chapter V and in a sense retirement under Voluntary Retirement Scheme was not contemplated when the Regulations were made in 1995. Regulation 28 was amended in the year 2002 w.e.f. 01.09.2000 whereby an employee who opts for retirement before superannuation, but after rendering service for a minimum period of 15 years was also entitled for pension. The respondent is not covered by proviso to Regulation 28. As noted above, as per Clause 6(ii) of the Scheme 2001 entitlement being on the basis of Pension Regulations, 1995, the respondent shall be entitled only for pension if he falls in any of the classes of pension in Chapter V. We may notice that proviso to Regulation 28 although was amended w.e.f. 01.09.2000 but it was clarified by Circular dated 31.01.2001 that the employees, who opted for pension but completed minimum 15 years of service and opt for voluntary retirement under this Scheme would also be eligible for pro-rata pension.The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is notScheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent | 1 | 4,288 | 763 | ### Instruction:
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provision for situations similar to the one in the instant case. 32. In the absence of any particular provision for payment of pension to those who opted for BOBEVRS-2001 other than Regulation 11(ii) of the Scheme, we are once again left to fall back on the Pension Regulations, 1995, and the amended provisions of Regulation 28 which brings within the scope of Superannuation Pension employees who opted for the Voluntary Retirement Scheme, which will be clear from the Explanatory Memorandum. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping with Regulation 14 of the Pension Regulations, 1995. 33. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995, of the appellant Bank.? 15. The above judgment was subsequently followed in Regional Manager, Punjab National Bank and another vs. Dharam Pal Singh and Punjab National Bank and others vs. Ram Kishan (supra). 16. The judgment on which much reliance has been placed by the learned counsel for the respondent is Bank of India and another vs. K. Mohandas and others (supra). The issue arose for consideration in the above case has been noticed in paragraph 24 of the judgment, which is to the following effect: ?24. The principal question that falls for our determination is: whether the employees (having completed 20 years of service) of these banks (Bank of India, Punjab National Bank, Punjab & Sind Bank, Union Bank of India and United Bank of India) who had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of Pension Regulations, 1995?? 17. In the above case, the Scheme was noted as VRS 2000. Under the aforesaid Scheme eligibility was to employee who had rendered minimum of 15 years of service or completed 40 years of age. In the above case, the judgment of this Court in Bank of Baroda and others vs. Ganpat Singh Deora (supra) was relied by the Bank, which judgment was noticed and this Court laid down following in paragraphs 61 and 63: ?61. The observations made by this Court in Bank of Baroda (2009 (3) SCC 217 ) which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations, 1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. 63. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters.? 18. The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is not attracted.19. Dr. Singhvi has placed much reliance on the judgment of this Court in National Insurance Company Limited and another vs. Kirpal Singh, (2014) 5 SCC 189. In the above case, this Court had occasion to consider the SVRS Scheme, 2004. Under the General Insurance Business (Nationalisation) Act, 1972, the eligibility of the Scheme was confined to those employees who have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. Clause 6 of Scheme, 2004 subclause 1(c) provided that pension shall be payable as per the General Insurance (Employees?) Pension Scheme, 1995. The Scheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
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### Explanation:
9. It is true that as per Clause 4 any employee who has 15 years of service or completed 40 years of age is eligible to apply for voluntary retirement under the Scheme. There is no dispute that the respondent was eligible to apply for voluntary retirement, otherbenefits under the Scheme have been extended to the respondent and only limited issue in the present appeal is entitlement of the respondent for pension. Clause 6(ii), which is relevant provision regarding entitlement of the claim provides that ?Pension (including commuted value of pension) as per Central Bank of India (Employees?) Pension Regulations, 1995……? Thus, payment of pension under the Scheme has to be as per Pension Regulations, 1995.Voluntary retirement in the case of respondent is not retirement which is covered within the definition of Clause 2(y) on strict interpretation of definition clause. Furthermore, as clear from the opening words, the said qualifying service is ?subject to the other conditions contained in Regulations?. Chapter V of the Regulations, 1995 deals with classes of pension. Different classes of pension include superannuation pension, pension on voluntary retirement, invalid pension, compassionate allowance, premature retirement pension and compulsory retirement pension. Classes of pension specifically defined in Chapter V and in a sense retirement under Voluntary Retirement Scheme was not contemplated when the Regulations were made in 1995. Regulation 28 was amended in the year 2002 w.e.f. 01.09.2000 whereby an employee who opts for retirement before superannuation, but after rendering service for a minimum period of 15 years was also entitled for pension. The respondent is not covered by proviso to Regulation 28. As noted above, as per Clause 6(ii) of the Scheme 2001 entitlement being on the basis of Pension Regulations, 1995, the respondent shall be entitled only for pension if he falls in any of the classes of pension in Chapter V. We may notice that proviso to Regulation 28 although was amended w.e.f. 01.09.2000 but it was clarified by Circular dated 31.01.2001 that the employees, who opted for pension but completed minimum 15 years of service and opt for voluntary retirement under this Scheme would also be eligible for pro-rata pension.The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is notScheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
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The Bombay Union Of Journalists And Others Vs. The, Hindu', Bombay, And Another | that notice of the meeting dated April 17 convened for the purpose of considering the requisition was ever given to Venkateswaran and if it was not given, by the mere passing of a resolution by other members of the Union the case of the appellants that the claim of Salivateeswaran was supported by Venkateswaran cannot be supported.15. The Tribunal observed that if even after the reference Venkateswaran and Tiwari ceased to support the cause of Salivateeswaran, being the only person who could support the cause, the reference must fail, and in support of that view relied upon the judgment of a Single Judge of the Madras High Court in The Hindu v. The Working Journalists of the Hindu in Madras 1959-2 Lab LJ 348: (AIR 1960 Mad 190) but this decision has since been overruled by a Division Bench of the Madras High Court in the Working Journalists of the Hindu v. Management of the Hindu, 1961-1 Lab LJ 288 : (AIR 1961 Mad 370 ). In that case the Court observed."It must be held that the jurisdiction of the labour court to proceed with the matter wholly depends on whether the industrial dispute referred to it for adjudication existed or was apprehended on the date of the reference and not on any subsequent date. Having regard to the relevant statutory provisions it must be held that the jurisdiction of the labour court to proceed with and adjudicate upon an industrial dispute sterms from and is sustained, until it makes an award and the same becomes enforceable, by the reference itself which has been made on the basis of an industrial dispute existing or apprehended on the date of the reference and that the jurisdiction of the labour court to proceed in the matter is not in any way affected by the fact that subsequent to the date of the reference, the workers or a substantial section of them, who had originally sponsored the cause, had later resiled and withdrawn from it."In our view these observations correctly set out the effect of a subsequent withdrawal of support by the workmen of a cause previously espoused by them.In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the Union of the workmen the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen.If Venkateswaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswaran by Venkateswaran or by Tiwari and therefore the dispute continued to remain an individual dispute.16. The effect of the support to the cause of Salivateeswaran by the Indian Federation of Working Journalists and the claim founded thereon does not call for any detailed consideration. After the reference was submitted and it was pending hearing before the Tribunal a letter was written by the President of the Indian Federation of Working Journalists to the General Secretary of the Bombay Union of Journalists on April 16, 1959, stating that the Federation had lent support to Salivateeswaran in the writ petition filed by "The Hindu" in the Supreme Court and that the Federation did so as it was a test case. Another letter dated April,17, 1959, was addressed by the General Secretary of the Indian Federation of Working Journalists to the General Secretary, Bombay Union of Journalists, Bombay stating that they had advised Salivateeswaran to file a petition before the Presiding officer of the Industrial Court in Bombay and had also intervened in the Supreme Court, and further that the Federation fully supported all actions taken by the Bombay Union of Journalists to get justice for Salivateeswaran. The Secretary of the Union by letter dated July 9, 1959, wrote to the President and Secretary-General of the Indian Federation of Working Journalists that Salivateeswarans case was being heard for a week and that Salivateeswaran was to undergo cross-examination on the next day and that Mahatame, the previous Secretary was to give evidence. He further stated "I am of opinion that we must produce some document whereby it will be possible to prove that the Federation had supported Salivateeswarans case and requested the Federation to send a document in the form of a minute of a meeting or a letter or a resolution and if there was none such on the record, to pass a fresh resolution supporting the Bombay Unions action regarding Salivateeswarans case and to send the same by return of post. Taking a clue from this letter, on July 24, 1959, the President of the Federation sent a copy of the resolution alleged to have been adopted by the members of the Working Committee of the Indian Federation of Working Journalists regarding Salivateeswarans case. The draft resolution sought to support the case of the Bombay Union of Journalists before the Industrial Tribunal, Bombay, and to "direct the Union to fight the case with all its strength." This resolution is alleged to have been passed by circulation after the commencement of the adjudication proceedings. If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference even of workmen interested in the dispute. We have already held that subsequent withdrawal of support will not take away the jurisdiction of an industrial tribunal. On the same reasoning subsequent support will not convert what was an individual dispute at the time of reference into an industrial dispute. The resolution of the Indian Federation of Working Journalists, assuming that it has any value, would not be sufficient to convert what was an individual dispute into an industrial dispute. | 0[ds]8. The dispute, in the present case, being prima facie, an individual dispute, that it had been taken up by the Union of employees of "The Hindu Bombay or by an appreciable number of employees of "The Hindu" Bombay.By its constitution the Bombay Union of Journalists is a Union not of employees of one employer, but of all employees in the industry of journalism in Bombay. Support of the cause, by the Union, will not in our judgment convert the individual dispute of one of its members unto an industrial dispute. The dispute between "The Hindu" Bombay and Salivateeswaran was in respect of alleged wrongful termination of employment; it could acquire the character of an industrial dispute only if it was proved that it was, before it was referred, supported by the Union of the employee of "The Hindu" Bombay or by an appreciable number of itsthe present case members of the Union who were not workmen of the employer against whom the dispute was sought to be raised, seek by supporting the dispute to convert what is prima facie an individual dispute into an industrial dispute. The principle that the persons who seek to support the cause of a workman must themselves be directly and subtantially interested in the dispute in our view applies to this class of case also: persons who are not employees of the same employer cannot be regarded as so interested, that by their support they may convert an individual dispute into an industrial dispute. The mere support to his cause by the Bombay Union of Journalists cannot therefore assist the claim of Salivateswaran so as to convert it into an industrialis true that the Executive Committee of the Bombay Union of Journalists had in August 1956. resolved to support the cause of Salivateeswaran, but that resolution was in respect of the application under Act 45 of 1955. The Union appeared before the Authority appointed by the Government of Bombay and also in this Court in the petition under Art 32 of the Constitution, but that support cannot, in our judgment assist the claim now made by Salivateeswaran. The proceedings under S. 17 of the Working Journalists (Conditions of Service) Act terminated when the Authority refused to proceed with the petition. Again, there is nothing to show that Venkateswarna had participated in any of theseevidence in support of this resolution is very unsatisfactory. For reasons to be presently set out, we are of the view that the evidence tends to establish the plea raised by the first respondent that the record of the alleged resolution was fabricated with a view to support the case ofis difficult to accept the testimony of Mahatame that even though minutes of the Executive Committees meetings were maintained, records relating to the General Body meetings were not preserved. Mahatames explanation that the agenda was cyclostyled and thereafter destroyed is too crude to be accepted. Other circumstances to which we will presently advert make it abundantly clear that the story about the resolution having been passed on April 17, 1958, isdocumentary evidence which should normally have been in existence if the case that the Union passed a resolution on April 17, 1958, was true, has not been produced on the plea either that it was not maintained or that it was destroyed. Even on the case of the appellants, there is nothing to show that notice of the meeting dated April 17 convened for the purpose of considering the requisition was ever given to Venkateswaran and if it was not given, by the mere passing of a resolution by other members of the Union the case of the appellants that the claim of Salivateeswaran was supported by Venkateswaran cannot beour view these observations correctly set out the effect of a subsequent withdrawal of support by the workmen of a cause previously espoused by them.In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the Union of the workmen the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen.If Venkateswaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswaran by Venkateswaran or by Tiwari and therefore the dispute continued to remain an individualresolution is alleged to have been passed by circulation after the commencement of the adjudication proceedings. If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference even of workmen interested in the dispute. We have already held that subsequent withdrawal of support will not take away the jurisdiction of an industrial tribunal. On the same reasoning subsequent support will not convert what was an individual dispute at the time of reference into an industrial dispute. The resolution of the Indian Federation of Working Journalists, assuming that it has any value, would not be sufficient to convert what was an individual dispute into an industrial dispute. | 0 | 5,353 | 960 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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that notice of the meeting dated April 17 convened for the purpose of considering the requisition was ever given to Venkateswaran and if it was not given, by the mere passing of a resolution by other members of the Union the case of the appellants that the claim of Salivateeswaran was supported by Venkateswaran cannot be supported.15. The Tribunal observed that if even after the reference Venkateswaran and Tiwari ceased to support the cause of Salivateeswaran, being the only person who could support the cause, the reference must fail, and in support of that view relied upon the judgment of a Single Judge of the Madras High Court in The Hindu v. The Working Journalists of the Hindu in Madras 1959-2 Lab LJ 348: (AIR 1960 Mad 190) but this decision has since been overruled by a Division Bench of the Madras High Court in the Working Journalists of the Hindu v. Management of the Hindu, 1961-1 Lab LJ 288 : (AIR 1961 Mad 370 ). In that case the Court observed."It must be held that the jurisdiction of the labour court to proceed with the matter wholly depends on whether the industrial dispute referred to it for adjudication existed or was apprehended on the date of the reference and not on any subsequent date. Having regard to the relevant statutory provisions it must be held that the jurisdiction of the labour court to proceed with and adjudicate upon an industrial dispute sterms from and is sustained, until it makes an award and the same becomes enforceable, by the reference itself which has been made on the basis of an industrial dispute existing or apprehended on the date of the reference and that the jurisdiction of the labour court to proceed in the matter is not in any way affected by the fact that subsequent to the date of the reference, the workers or a substantial section of them, who had originally sponsored the cause, had later resiled and withdrawn from it."In our view these observations correctly set out the effect of a subsequent withdrawal of support by the workmen of a cause previously espoused by them.In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the Union of the workmen the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen.If Venkateswaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswaran by Venkateswaran or by Tiwari and therefore the dispute continued to remain an individual dispute.16. The effect of the support to the cause of Salivateeswaran by the Indian Federation of Working Journalists and the claim founded thereon does not call for any detailed consideration. After the reference was submitted and it was pending hearing before the Tribunal a letter was written by the President of the Indian Federation of Working Journalists to the General Secretary of the Bombay Union of Journalists on April 16, 1959, stating that the Federation had lent support to Salivateeswaran in the writ petition filed by "The Hindu" in the Supreme Court and that the Federation did so as it was a test case. Another letter dated April,17, 1959, was addressed by the General Secretary of the Indian Federation of Working Journalists to the General Secretary, Bombay Union of Journalists, Bombay stating that they had advised Salivateeswaran to file a petition before the Presiding officer of the Industrial Court in Bombay and had also intervened in the Supreme Court, and further that the Federation fully supported all actions taken by the Bombay Union of Journalists to get justice for Salivateeswaran. The Secretary of the Union by letter dated July 9, 1959, wrote to the President and Secretary-General of the Indian Federation of Working Journalists that Salivateeswarans case was being heard for a week and that Salivateeswaran was to undergo cross-examination on the next day and that Mahatame, the previous Secretary was to give evidence. He further stated "I am of opinion that we must produce some document whereby it will be possible to prove that the Federation had supported Salivateeswarans case and requested the Federation to send a document in the form of a minute of a meeting or a letter or a resolution and if there was none such on the record, to pass a fresh resolution supporting the Bombay Unions action regarding Salivateeswarans case and to send the same by return of post. Taking a clue from this letter, on July 24, 1959, the President of the Federation sent a copy of the resolution alleged to have been adopted by the members of the Working Committee of the Indian Federation of Working Journalists regarding Salivateeswarans case. The draft resolution sought to support the case of the Bombay Union of Journalists before the Industrial Tribunal, Bombay, and to "direct the Union to fight the case with all its strength." This resolution is alleged to have been passed by circulation after the commencement of the adjudication proceedings. If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference even of workmen interested in the dispute. We have already held that subsequent withdrawal of support will not take away the jurisdiction of an industrial tribunal. On the same reasoning subsequent support will not convert what was an individual dispute at the time of reference into an industrial dispute. The resolution of the Indian Federation of Working Journalists, assuming that it has any value, would not be sufficient to convert what was an individual dispute into an industrial dispute.
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8. The dispute, in the present case, being prima facie, an individual dispute, that it had been taken up by the Union of employees of "The Hindu Bombay or by an appreciable number of employees of "The Hindu" Bombay.By its constitution the Bombay Union of Journalists is a Union not of employees of one employer, but of all employees in the industry of journalism in Bombay. Support of the cause, by the Union, will not in our judgment convert the individual dispute of one of its members unto an industrial dispute. The dispute between "The Hindu" Bombay and Salivateeswaran was in respect of alleged wrongful termination of employment; it could acquire the character of an industrial dispute only if it was proved that it was, before it was referred, supported by the Union of the employee of "The Hindu" Bombay or by an appreciable number of itsthe present case members of the Union who were not workmen of the employer against whom the dispute was sought to be raised, seek by supporting the dispute to convert what is prima facie an individual dispute into an industrial dispute. The principle that the persons who seek to support the cause of a workman must themselves be directly and subtantially interested in the dispute in our view applies to this class of case also: persons who are not employees of the same employer cannot be regarded as so interested, that by their support they may convert an individual dispute into an industrial dispute. The mere support to his cause by the Bombay Union of Journalists cannot therefore assist the claim of Salivateswaran so as to convert it into an industrialis true that the Executive Committee of the Bombay Union of Journalists had in August 1956. resolved to support the cause of Salivateeswaran, but that resolution was in respect of the application under Act 45 of 1955. The Union appeared before the Authority appointed by the Government of Bombay and also in this Court in the petition under Art 32 of the Constitution, but that support cannot, in our judgment assist the claim now made by Salivateeswaran. The proceedings under S. 17 of the Working Journalists (Conditions of Service) Act terminated when the Authority refused to proceed with the petition. Again, there is nothing to show that Venkateswarna had participated in any of theseevidence in support of this resolution is very unsatisfactory. For reasons to be presently set out, we are of the view that the evidence tends to establish the plea raised by the first respondent that the record of the alleged resolution was fabricated with a view to support the case ofis difficult to accept the testimony of Mahatame that even though minutes of the Executive Committees meetings were maintained, records relating to the General Body meetings were not preserved. Mahatames explanation that the agenda was cyclostyled and thereafter destroyed is too crude to be accepted. Other circumstances to which we will presently advert make it abundantly clear that the story about the resolution having been passed on April 17, 1958, isdocumentary evidence which should normally have been in existence if the case that the Union passed a resolution on April 17, 1958, was true, has not been produced on the plea either that it was not maintained or that it was destroyed. Even on the case of the appellants, there is nothing to show that notice of the meeting dated April 17 convened for the purpose of considering the requisition was ever given to Venkateswaran and if it was not given, by the mere passing of a resolution by other members of the Union the case of the appellants that the claim of Salivateeswaran was supported by Venkateswaran cannot beour view these observations correctly set out the effect of a subsequent withdrawal of support by the workmen of a cause previously espoused by them.In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the Union of the workmen the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen.If Venkateswaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswaran by Venkateswaran or by Tiwari and therefore the dispute continued to remain an individualresolution is alleged to have been passed by circulation after the commencement of the adjudication proceedings. If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference even of workmen interested in the dispute. We have already held that subsequent withdrawal of support will not take away the jurisdiction of an industrial tribunal. On the same reasoning subsequent support will not convert what was an individual dispute at the time of reference into an industrial dispute. The resolution of the Indian Federation of Working Journalists, assuming that it has any value, would not be sufficient to convert what was an individual dispute into an industrial dispute.
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Pannalal and Anr Vs. Mst. Naraini and Ors | the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose.It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. One reason for introducing this section may have been or undoubtedly was to enable the decree-holder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under S. 50, Civil P. C. In both these sets of circumstances, the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.13. As we have said already, S. 53, Civil P. C., being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his fathers debts. It, however, lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the fathers debts from any ancestral property in his hands - and the section is not limited to property obtained by survivorship alone - the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under S. 47, Civil P. C. This seems to us to be the true scope and the meaning of S. 53, Civil P. C.In our opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P. C.14. It remains only to consider what order should be passed in this case having regard to the principles of law discussed above. The High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of the father.15. In our opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so. | 0[ds]It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets, vide Masitullah v. Damodar Prasad,53 Ind Ap. 204 P. C. The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the fathers life-time the son is obliged to pay his fathers debts in certain exceptional circumstances, e. g. when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite, vide Maynes Hindu Law, Edn.11 p. 408.It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangla Prasad,51 Ind. App 129 P. C. Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the fathers but also the sons interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lall v. Kantoo Lall,1 Ind. App 321:Madan Thakoor v. Kantoo Lall,1 Ind. App. 333 F. N. ;Suraj Bunsi v. Sheo Prasad,6 Ind. App. 88 P. C.; Brij Narain v. Mangla Prasad,51 Ind. App 129 (P.is true that the partition contemplated in these passages is one after the death of the father, but whenever the partition might take place, the view of the Hindu law-givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property. InSat Narain v. Sri Kishen Das.63 Ind App 384 (P. C.), the Judicial Committee pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. It was argued in that case on behalf of the appellants that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts unless they were immoral or illegal, but these debts were not a liability on the joint estate for which provision was required to be made before partition. This contention did not find favour with the Judicial Committee and in their opinion, as they expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition of the joint estate. If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance, " as enjoined by Vishnu (Vishnu, Chap. 6, verse 36).In our opinion, this is the proper view to take regarding the liability of the sons under Hindu Law for the pre-partition debts of the father. The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the principles of equity andexpressions "bona fide" and "mala fide" partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not un often lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will stilldesire only to point out that an arrangement for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain. The fact that he is no party to such arrangement is, in our opinion, immaterial. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.Thus, in our opinion, a son is liable, even after partition for the prepartition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of theposition has been correctly stated by the Nagpur High Court in JAINARAYAN v. SONAJI, AIR 1938 Nag 24 at p. 29 - in the followingsay a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking atis undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against, the sons and no attachment and sale of the sons separated shares would be permissible under S. 60, Civil P. C. The position, however, would be materially different if the sons are made parties to the suits as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of S. 47, Civil P. C., under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separateour opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P.High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of theour opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so. | 0 | 8,012 | 2,233 | ### Instruction:
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the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose.It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. One reason for introducing this section may have been or undoubtedly was to enable the decree-holder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under S. 50, Civil P. C. In both these sets of circumstances, the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.13. As we have said already, S. 53, Civil P. C., being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his fathers debts. It, however, lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the fathers debts from any ancestral property in his hands - and the section is not limited to property obtained by survivorship alone - the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under S. 47, Civil P. C. This seems to us to be the true scope and the meaning of S. 53, Civil P. C.In our opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P. C.14. It remains only to consider what order should be passed in this case having regard to the principles of law discussed above. The High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of the father.15. In our opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so.
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the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain. The fact that he is no party to such arrangement is, in our opinion, immaterial. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.Thus, in our opinion, a son is liable, even after partition for the prepartition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of theposition has been correctly stated by the Nagpur High Court in JAINARAYAN v. SONAJI, AIR 1938 Nag 24 at p. 29 - in the followingsay a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking atis undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against, the sons and no attachment and sale of the sons separated shares would be permissible under S. 60, Civil P. C. The position, however, would be materially different if the sons are made parties to the suits as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of S. 47, Civil P. C., under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separateour opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P.High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of theour opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so.
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Commissioner of Gift Tax, West Bengal Vs. Sardar Ajaib Singh | HEGDE, J.1. This appeal by special leave arises from the decision of the High Court of Calcutta in Gift-tax Matter No. 286 of 1963 on its file. It relates to the gift-tax assessment for 1958-59. In that case several questions were referred to the High Court by the Income-tax Appellate Tribunal, A Bench, Calcutta. But at present we are only concerned with question No. 1(a) which reads " Whether, on the facts and in the circumstances of the case, in determining the break up value of the shares of M/s. Indra Singh and Sons Pvt. Ltd. as on 31st March, 1958, the Tribunal was justified in not allowing any deduction for the following amounts :(a) estimated tax liability amounting to Rs. 9, 50, 000 which was not provided for in the balance-sheet ? "2. It appears that counsel for the parties conceded before the High Court that that question was covered by the decision of this court in Kesoram Industries & Cotton Mills Ltd. v. Commissioner of Wealth-tax. On the basis of that concession, the High Court answered that question in favour of the assessee.3. Before us, it was urged on behalf of the revenue that the concession made before the High Court was an erroneous one and the decision of this court in Kesoram Industries case does not bear on the issue arising for decision.The assessee who is an individual made a gift of 350 ordinary shares of the face value of Rs. 1, 000 each in M/s. Indra Singh and Sons Pvt. Ltd. on December 13, 1957, to his daughter, Smt. Rupinder Kaur. As the assessee was not able to produce any quotation in respect of the market value of the shares of that company, the Gift-tax Officer for the purpose of gift-tax assessment valued those shares at Rs. 4, 282 per share on the basis of the valuation adopted by the Wealth-tax Officer for the assessment year 1957-58, being the break up value computed on the basis of assets and liabilities of the company as disclosed by the balance-sheet as on March 31, 1957. In computing the net value of the assets of the company, the assessee wanted the Gift-tax Officer to make certain deductions ; one such deduction asked for by him was the estimated tax liability of Rs. 9, 50, 000. The Gift-tax Officer refused to make that deduction, as the same was not provided for in the balance-sheet. The Appellate Assistant Commissioner confirmed the decision of the Gift-tax Officer. On a further appeal, the Tribunal came to the conclusion that that tax liability was required to be taken into account in computing the value of the assets of the company. But that liability was covered by the existing reserve, advance tax paid and refund to which the company was entitled under section 18(5) of the Income-tax Act. This finding of the Tribunal is essentially a finding of fact, and it is not shown that that finding is in any manner vitiated. That being so, the ratio of the decision of this court in Kesoram Industries case is not attracted.4. This question we have discussed in greater detail in the assessees wealth-tax appeals (Civil Appeals Nos. 2485 and 2486 of 1966) in which we have delivered judgment just now | 1[ds]This finding of the Tribunal is essentially a finding of fact, and it is not shown that that finding is in any manner vitiated. That being so, the ratio of the decision of this court in Kesoram Industries case is not attracted.This question we have discussed in greater detail in the assesseesappeals (Civil Appeals Nos. 2485 and 2486 of 1966) in which we have delivered judgment just now | 1 | 611 | 78 | ### Instruction:
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HEGDE, J.1. This appeal by special leave arises from the decision of the High Court of Calcutta in Gift-tax Matter No. 286 of 1963 on its file. It relates to the gift-tax assessment for 1958-59. In that case several questions were referred to the High Court by the Income-tax Appellate Tribunal, A Bench, Calcutta. But at present we are only concerned with question No. 1(a) which reads " Whether, on the facts and in the circumstances of the case, in determining the break up value of the shares of M/s. Indra Singh and Sons Pvt. Ltd. as on 31st March, 1958, the Tribunal was justified in not allowing any deduction for the following amounts :(a) estimated tax liability amounting to Rs. 9, 50, 000 which was not provided for in the balance-sheet ? "2. It appears that counsel for the parties conceded before the High Court that that question was covered by the decision of this court in Kesoram Industries & Cotton Mills Ltd. v. Commissioner of Wealth-tax. On the basis of that concession, the High Court answered that question in favour of the assessee.3. Before us, it was urged on behalf of the revenue that the concession made before the High Court was an erroneous one and the decision of this court in Kesoram Industries case does not bear on the issue arising for decision.The assessee who is an individual made a gift of 350 ordinary shares of the face value of Rs. 1, 000 each in M/s. Indra Singh and Sons Pvt. Ltd. on December 13, 1957, to his daughter, Smt. Rupinder Kaur. As the assessee was not able to produce any quotation in respect of the market value of the shares of that company, the Gift-tax Officer for the purpose of gift-tax assessment valued those shares at Rs. 4, 282 per share on the basis of the valuation adopted by the Wealth-tax Officer for the assessment year 1957-58, being the break up value computed on the basis of assets and liabilities of the company as disclosed by the balance-sheet as on March 31, 1957. In computing the net value of the assets of the company, the assessee wanted the Gift-tax Officer to make certain deductions ; one such deduction asked for by him was the estimated tax liability of Rs. 9, 50, 000. The Gift-tax Officer refused to make that deduction, as the same was not provided for in the balance-sheet. The Appellate Assistant Commissioner confirmed the decision of the Gift-tax Officer. On a further appeal, the Tribunal came to the conclusion that that tax liability was required to be taken into account in computing the value of the assets of the company. But that liability was covered by the existing reserve, advance tax paid and refund to which the company was entitled under section 18(5) of the Income-tax Act. This finding of the Tribunal is essentially a finding of fact, and it is not shown that that finding is in any manner vitiated. That being so, the ratio of the decision of this court in Kesoram Industries case is not attracted.4. This question we have discussed in greater detail in the assessees wealth-tax appeals (Civil Appeals Nos. 2485 and 2486 of 1966) in which we have delivered judgment just now
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This finding of the Tribunal is essentially a finding of fact, and it is not shown that that finding is in any manner vitiated. That being so, the ratio of the decision of this court in Kesoram Industries case is not attracted.This question we have discussed in greater detail in the assesseesappeals (Civil Appeals Nos. 2485 and 2486 of 1966) in which we have delivered judgment just now
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Mr. Viswanath s/o Late Vishnuprasad Toshniwal Vs. State of Maharashtra and ors | 1. Heard learned counsel Shri A.Agrawal for the applicant and learned Additional Public Prosecutor Shri S.M.Ghodeswar for the State. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for respective parties. 2. By this application, under Section 482 of the Code of Criminal Procedure, the applicant challenges First Information Report No.619/2021 registered with Sewagram Police Station, Wardha, for offences punishable under Sections 34, 409, 420, 467, 469, and 506 of the Indian Penal Code read with Sections 103 and 104 of the Trade Marks Act, 1999. 3. Non-applicant No.2 is the complainant. He lodged the First Information Report against seven accused persons, including the present applicant. The applicant is accused No.7 in the First Information Report. As per the First Information Report, the accused persons making fake signatures prepared forged documents in the name of the complainants company, pretended them to be genuine documents, and committed misappropriation of money. It is alleged that accused persons borrowed amounts by using those documents. As per the First Information Report, accused persons in collusion with the applicant committed aforesaid offences, which are punishable under the Indian Penal Code. 4. Learned counsel for the applicant submits that the applicant has been implicated in the crime falsely. He submits that the applicant has played no role in the crime and, therefore, in no way he is connected with offences levelled against him. Learned counsel states that Investigating Officer filed its say. The said say itself was treated as a reply of the Public Prosecutor to the bail application filed before the learned Judge below. In support of submissions, learned counsel invited our attention to the reply and submitted that Investigating Officer has also mentioned in the reply that, at present, no document is available with investigating agency showing involvement of the applicant in offences levelled against the applicant. Therefore, learned counsel, on the basis of the said reply, submits that since in no way concerned with offences, the First Information Report lodged against the applicant deserves to be quashed. 5. Per contra, learned Additional Public Prosecutor for the State submits that allegations levelled against the applicant are to the effect that accused persons in collusion with the applicant making fake signatures prepared forged documents in the name of complainants company; pretending to be genuine documents committed misappropriation of money, and have borrowed amounts by using those documents. He submits that investigation of the crime is going on, and as such, at this stage, it cannot be said at all that investigating agency has no material against the applicant. 6. Having considered allegations levelled against the applicant in the First Information Report along with the reply tendered by the Public Prosecutor to the bail application filed before the learned Judge below, we find that offences levelled against the applicant are of such nature in which a detailed investigation is necessary as the same offences violate provisions of the Trade Marks Act. In our view, the investigating agency needs to be given an opportunity to investigate the crime in question. At this stage, we cannot adjudicate whether the applicant is involved in offences levelled against him or not. Prima facie reading of the First Information Report reveals the nature of the allegation mainly to the effect that it has been discovered through the GST portal that accused Nos.1 and 2 have opened a new company in the name of Micro Plex (India) and have done GST registration. It also reveals that to hide all illegal acts and recover the money of the complainants company, accused persons used licence/permission and, by using the trademark, cheated departments/customers/public and grabbed amount fraudulently. Accused No.7 is Chartered Account of Company, while accused Nos.1 and 2 are Directors. 7. In the context of the aforesaid allegations, we are satisfied that investigating agency has to be given an opportunity to complete the investigation into the crime. If, ultimately, after completion of the investigation, it reveals that the applicant has no role to play in offences alleged against him, investigating agency is bound to act in accordance with the law. 8. The Honourable Apex Court in the case of Neeharika Infrastructure Pvt. Ltd.v. State of Maharashtra reported in AIR 2021 SC 1918 has taken the view that the High Court, while exercising powers under Section 482 of the Code of Criminal Procedure, the Court should keep in mind that the Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; it would not thwart any investigation into the cognizable offences; it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of the death penalty). The Court, while examining an FIR/complaint, quashing of which is sought, cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; Criminal proceedings ought not to be scuttled at the initial stage. 9. Prima facie reading of the First Information Report lodged against the applicant, we are satisfied that this is not a case wherein the High Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure as it requires detailed investigation. | 0[ds]6. Having considered allegations levelled against the applicant in the First Information Report along with the reply tendered by the Public Prosecutor to the bail application filed before the learned Judge below, we find that offences levelled against the applicant are of such nature in which a detailed investigation is necessary as the same offences violate provisions of the Trade Marks Act. In our view, the investigating agency needs to be given an opportunity to investigate the crime in question. At this stage, we cannot adjudicate whether the applicant is involved in offences levelled against him or not. Prima facie reading of the First Information Report reveals the nature of the allegation mainly to the effect that it has been discovered through the GST portal that accused Nos.1 and 2 have opened a new company in the name of Micro Plex (India) and have done GST registration. It also reveals that to hide all illegal acts and recover the money of the complainants company, accused persons used licence/permission and, by using the trademark, cheated departments/customers/public and grabbed amount fraudulently. Accused No.7 is Chartered Account of Company, while accused Nos.1 and 2 are Directors.7. In the context of the aforesaid allegations, we are satisfied that investigating agency has to be given an opportunity to complete the investigation into the crime. If, ultimately, after completion of the investigation, it reveals that the applicant has no role to play in offences alleged against him, investigating agency is bound to act in accordance with the law.8. The Honourable Apex Court in the case of Neeharika Infrastructure Pvt. Ltd.v. State of Maharashtra reported in AIR 2021 SC 1918 has taken the view that the High Court, while exercising powers under Section 482 of the Code of Criminal Procedure, the Court should keep in mind that the Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; it would not thwart any investigation into the cognizable offences; it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of the death penalty). The Court, while examining an FIR/complaint, quashing of which is sought, cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; Criminal proceedings ought not to be scuttled at the initial stage.9. Prima facie reading of the First Information Report lodged against the applicant, we are satisfied that this is not a case wherein the High Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure as it requires detailed investigation. | 0 | 1,026 | 542 | ### 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:
1. Heard learned counsel Shri A.Agrawal for the applicant and learned Additional Public Prosecutor Shri S.M.Ghodeswar for the State. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for respective parties. 2. By this application, under Section 482 of the Code of Criminal Procedure, the applicant challenges First Information Report No.619/2021 registered with Sewagram Police Station, Wardha, for offences punishable under Sections 34, 409, 420, 467, 469, and 506 of the Indian Penal Code read with Sections 103 and 104 of the Trade Marks Act, 1999. 3. Non-applicant No.2 is the complainant. He lodged the First Information Report against seven accused persons, including the present applicant. The applicant is accused No.7 in the First Information Report. As per the First Information Report, the accused persons making fake signatures prepared forged documents in the name of the complainants company, pretended them to be genuine documents, and committed misappropriation of money. It is alleged that accused persons borrowed amounts by using those documents. As per the First Information Report, accused persons in collusion with the applicant committed aforesaid offences, which are punishable under the Indian Penal Code. 4. Learned counsel for the applicant submits that the applicant has been implicated in the crime falsely. He submits that the applicant has played no role in the crime and, therefore, in no way he is connected with offences levelled against him. Learned counsel states that Investigating Officer filed its say. The said say itself was treated as a reply of the Public Prosecutor to the bail application filed before the learned Judge below. In support of submissions, learned counsel invited our attention to the reply and submitted that Investigating Officer has also mentioned in the reply that, at present, no document is available with investigating agency showing involvement of the applicant in offences levelled against the applicant. Therefore, learned counsel, on the basis of the said reply, submits that since in no way concerned with offences, the First Information Report lodged against the applicant deserves to be quashed. 5. Per contra, learned Additional Public Prosecutor for the State submits that allegations levelled against the applicant are to the effect that accused persons in collusion with the applicant making fake signatures prepared forged documents in the name of complainants company; pretending to be genuine documents committed misappropriation of money, and have borrowed amounts by using those documents. He submits that investigation of the crime is going on, and as such, at this stage, it cannot be said at all that investigating agency has no material against the applicant. 6. Having considered allegations levelled against the applicant in the First Information Report along with the reply tendered by the Public Prosecutor to the bail application filed before the learned Judge below, we find that offences levelled against the applicant are of such nature in which a detailed investigation is necessary as the same offences violate provisions of the Trade Marks Act. In our view, the investigating agency needs to be given an opportunity to investigate the crime in question. At this stage, we cannot adjudicate whether the applicant is involved in offences levelled against him or not. Prima facie reading of the First Information Report reveals the nature of the allegation mainly to the effect that it has been discovered through the GST portal that accused Nos.1 and 2 have opened a new company in the name of Micro Plex (India) and have done GST registration. It also reveals that to hide all illegal acts and recover the money of the complainants company, accused persons used licence/permission and, by using the trademark, cheated departments/customers/public and grabbed amount fraudulently. Accused No.7 is Chartered Account of Company, while accused Nos.1 and 2 are Directors. 7. In the context of the aforesaid allegations, we are satisfied that investigating agency has to be given an opportunity to complete the investigation into the crime. If, ultimately, after completion of the investigation, it reveals that the applicant has no role to play in offences alleged against him, investigating agency is bound to act in accordance with the law. 8. The Honourable Apex Court in the case of Neeharika Infrastructure Pvt. Ltd.v. State of Maharashtra reported in AIR 2021 SC 1918 has taken the view that the High Court, while exercising powers under Section 482 of the Code of Criminal Procedure, the Court should keep in mind that the Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; it would not thwart any investigation into the cognizable offences; it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of the death penalty). The Court, while examining an FIR/complaint, quashing of which is sought, cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; Criminal proceedings ought not to be scuttled at the initial stage. 9. Prima facie reading of the First Information Report lodged against the applicant, we are satisfied that this is not a case wherein the High Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure as it requires detailed investigation.
### Response:
0
### Explanation:
6. Having considered allegations levelled against the applicant in the First Information Report along with the reply tendered by the Public Prosecutor to the bail application filed before the learned Judge below, we find that offences levelled against the applicant are of such nature in which a detailed investigation is necessary as the same offences violate provisions of the Trade Marks Act. In our view, the investigating agency needs to be given an opportunity to investigate the crime in question. At this stage, we cannot adjudicate whether the applicant is involved in offences levelled against him or not. Prima facie reading of the First Information Report reveals the nature of the allegation mainly to the effect that it has been discovered through the GST portal that accused Nos.1 and 2 have opened a new company in the name of Micro Plex (India) and have done GST registration. It also reveals that to hide all illegal acts and recover the money of the complainants company, accused persons used licence/permission and, by using the trademark, cheated departments/customers/public and grabbed amount fraudulently. Accused No.7 is Chartered Account of Company, while accused Nos.1 and 2 are Directors.7. In the context of the aforesaid allegations, we are satisfied that investigating agency has to be given an opportunity to complete the investigation into the crime. If, ultimately, after completion of the investigation, it reveals that the applicant has no role to play in offences alleged against him, investigating agency is bound to act in accordance with the law.8. The Honourable Apex Court in the case of Neeharika Infrastructure Pvt. Ltd.v. State of Maharashtra reported in AIR 2021 SC 1918 has taken the view that the High Court, while exercising powers under Section 482 of the Code of Criminal Procedure, the Court should keep in mind that the Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; it would not thwart any investigation into the cognizable offences; it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of the death penalty). The Court, while examining an FIR/complaint, quashing of which is sought, cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; Criminal proceedings ought not to be scuttled at the initial stage.9. Prima facie reading of the First Information Report lodged against the applicant, we are satisfied that this is not a case wherein the High Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure as it requires detailed investigation.
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EIH LIMITED Vs. NADIA A VIRJI | the same, sue the tenant for recovery of rent or eviction on the ground of non-payment of rent despite demand. The tenant can get protection against eviction on the ground of arrears of rent only if he makes requisite deposit of the arrears in the manner laid down in the provisions of the Tenancy Act. A provision to fictionally treat tax as rent is necessitated because in the absence of such a fiction in Section 231 of the Act, the landlord would be compelled to pay the whole amount of tax which is recoverable from him under the Act and would be left to an expensive and cumbersome remedy of filing a civil suit for recovery of such tax paid on behalf of the tenant, sub- tenant or occupant. Such a fiction is required to be incorporated under Section 231 of the Act because a private party cannot recover tax. If a lessor is obliged to pay a portion of tax leviable on the tenant, the landlord can recover the same not as tax but only as part of rent. The fiction created by the legislation in Section 231 to treat tax as rent has to be taken to its logical conclusion. The Act under consideration and the Tenancy Act, both are State legislations. No question arises of legislative incompetence. There does not appear any inter se conflict between the two Acts. Both have to be read and applied harmoniously to achieve the legislative intent in the two enactments. The contention based on Section 231 of the Act, therefore, also does not commend to us and is rejected. Thus, as observed and held by this Court in the case of Calcutta Gujarati Education Society (supra), the amount of tax due and payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997 can be recovered as arrears of rent (Section 231 of the Act 1980) and for that purpose, namely, for the purpose of recovery the tax apportioned on the tenant would be treated as rent and would be recoverable as such. The aforesaid judgment cannot be read holding that the tax apportioned on the tenant be treated as part of the rent, as contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. Merely because the obligation to pay half of the property tax and surcharge would be upon the tenant as per section 230 of the Act 1980 and the tenant is obliged to pay his share of municipal tax as an occupier of the premises under Section 5(8) of the Act 1997 and merely because for the purpose of recovery of the tax due from the tenant, such tax apportioned can be recovered as rent, such tax apportioned (half of the amount of the property tax and surcharge) cannot become part of the rent of the premises which is tenanted. For that purpose, the terms and conditions mentioned in the tenancy agreement/lease agreement are required to be considered. For example, if in the tenancy agreement if it is provided that the tenant shall pay X amount which shall include the taxes, the tax component can be said to be part of the rent. However, if under the agreement and/or even under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997, the tenant is liable to pay tax separately or half of the amount of tax now statutorily liable to be paid, the same can be recovered as arrears of rent because such tax is to be treated as rent for the purpose of recovery. However, the same cannot be said to be part of the rent. Therefore, reliance placed upon the decision of this Court in the case of Calcutta Gujarati Education Society (supra) by learned counsel appearing on behalf of the landlord is on a misreading of the said decision. As observed hereinabove, the said decision cannot be read to mean that the tax apportioned can be said to be part of the rent as sought to be contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. 9. Now so far as reliance being placed upon the subsequent decision of this Court in the case of Popat and Kotecha Property (supra) is concerned, at the outset, it is required to be noted that in the said decision, para 45 of the decision in the case of Calcutta Gujarati Education Society (supra) has been considered and not para 46, reproduced hereinabove. Even on facts, the said decision is not applicable. In the said decision, under the agreement the parties agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. In the present case, under the tenancy agreement, the rent payable would be Rs. 10,000/- per month which does not include the municipal taxes payable. The liability to pay the taxes under the agreement would be over and above the amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the decision of this Court in the case of Popat and Kotecha Property (supra) is not applicable to the facts of the case on hand. 10. Now so far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case. | 0[ds]5.2 At the outset, it is required to be noted that in the present case, under the tenancy agreement under consideration the rent payable by the tenant would be Rs. 10,000/- per month. Over and above the rent, the tenant has also agreed to pay the municipal taxes payable to the Calcutta Municipal Corporation. However, it is required to be noted that the tenancy agreement does not provide that the parties have agreed that the rent would be inclusive of municipal taxes payable and that as and when such taxes are enhanced, rent would be proportionately raised. Under the tenancy agreement, the rent payable would be Rs. 10,000/- per month and the liability to pay municipal taxes is separate and distinct on the tenant. On a fair reading of Section 3(f) of the Act 1997, which provides that any premises let out for non-residential purpose, which carries more than ten thousand rupees as monthly rent, nothing contained in the West Bengal Premises Tenancy Act, 1997 shall apply. The word used is monthly rent. As observed hereinabove, the term rent is not defined.8. Sections 230 & 231 of the Act 1980 fell for consideration before this Court in the case of Calcutta Gujarati Education Society (supra). Before this Court, the validity of the aforesaid two provisions of the Act 1980 were under challenge. This Court had an occasion to consider the object and purpose of Section 231 of the Act 1980 in para 45, which reads as under:45. We find that the machinery provisions for assessment and recovery of tax basically involve the owner or the lessor who is primarily liable for the tax on property although in the course of assessment and recovery of portion of tax from the tenants, sub- tenants or occupants, their involvement is also directed. It is with the purpose to make the procedure of recovery of tax simpler that the owner or the lessor is proceeded against as the person primarily liable. The owner or lessor of the property is primarily required to satisfy the demand towards tax with right to recover it from the tenant, sub-tenant or the occupant. If the landlord or the owner is obliged to make payment of whole amount of tax inclusive of his own share and share of the tenant, sub-tenant or the occupant, the owner or lessor has to be conferred with the power to recover the portion of tax payable by the tenant, sub-tenant or occupant who is actually enjoying the property and putting it to use for commercial or non- residential purpose. The legislature has taken note of the fact that a large number of properties in the metropolitan city of Calcutta are in occupation of tenants, sub-tenants or occupants on a comparatively small amount of rent or lease money. In such a situation, to impose entire burden of tax on the owner or lessor, would be inequitable, more so when the tenancy law does not allow increase in rent beyond a particular limit and the right of eviction of the landlord is restricted to the grounds under the Tenancy Act. By the impugned provisions of the Act, therefore, the legislature has thought of apportioning the tax burden between owner or the lessor as one party and the tenant, sub-tenant or occupier as the other parties. The whole amount of tax is recoverable from the lessor and may also be recovered from the tenant or sub-tenant through attachment of the rent. In case where the lessor or landlord has paid the whole tax including the portion of tax payable by the tenant or sub-tenant, the landlord has to be equipped with the power to get himself reimbursed by recovery of the portion of tax paid by him on behalf of the tenant. Section 231 of the Act, therefore, creates a fiction that the tax apportioned on the tenant would be treated as rent and would be recoverable as such. The word rent has not been defined in the tenancy law and this Court has taken note of this legal position in the case of Puspa Sen Gupta v. Susma Ghose [(1990) 2 SCC 651] which arose out of the provisions of the Tenancy Act applicable to West Bengal. Rent is a compendious expression which may include lease money with service charges for water, electricity and other taxes leviable on the tenanted premises.That thereafter, in paragraph 46, it is observed and held as under:46. The provisions of the Tenancy Act merely enable the landlord to make a demand of arrears of rent and in default of the payment of the same, sue the tenant for recovery of rent or eviction on the ground of non-payment of rent despite demand. The tenant can get protection against eviction on the ground of arrears of rent only if he makes requisite deposit of the arrears in the manner laid down in the provisions of the Tenancy Act. A provision to fictionally treat tax as rent is necessitated because in the absence of such a fiction in Section 231 of the Act, the landlord would be compelled to pay the whole amount of tax which is recoverable from him under the Act and would be left to an expensive and cumbersome remedy of filing a civil suit for recovery of such tax paid on behalf of the tenant, sub- tenant or occupant. Such a fiction is required to be incorporated under Section 231 of the Act because a private party cannot recover tax. If a lessor is obliged to pay a portion of tax leviable on the tenant, the landlord can recover the same not as tax but only as part of rent. The fiction created by the legislation in Section 231 to treat tax as rent has to be taken to its logical conclusion. The Act under consideration and the Tenancy Act, both are State legislations. No question arises of legislative incompetence. There does not appear any inter se conflict between the two Acts. Both have to be read and applied harmoniously to achieve the legislative intent in the two enactments. The contention based on Section 231 of the Act, therefore, also does not commend to us and is rejected.Thus, as observed and held by this Court in the case of Calcutta Gujarati Education Society (supra), the amount of tax due and payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997 can be recovered as arrears of rent (Section 231 of the Act 1980) and for that purpose, namely, for the purpose of recovery the tax apportioned on the tenant would be treated as rent and would be recoverable as such. The aforesaid judgment cannot be read holding that the tax apportioned on the tenant be treated as part of the rent, as contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. Merely because the obligation to pay half of the property tax and surcharge would be upon the tenant as per section 230 of the Act 1980 and the tenant is obliged to pay his share of municipal tax as an occupier of the premises under Section 5(8) of the Act 1997 and merely because for the purpose of recovery of the tax due from the tenant, such tax apportioned can be recovered as rent, such tax apportioned (half of the amount of the property tax and surcharge) cannot become part of the rent of the premises which is tenanted. For that purpose, the terms and conditions mentioned in the tenancy agreement/lease agreement are required to be considered. For example, if in the tenancy agreement if it is provided that the tenant shall pay X amount which shall include the taxes, the tax component can be said to be part of the rent. However, if under the agreement and/or even under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997, the tenant is liable to pay tax separately or half of the amount of tax now statutorily liable to be paid, the same can be recovered as arrears of rent because such tax is to be treated as rent for the purpose of recovery. However, the same cannot be said to be part of the rent. Therefore, reliance placed upon the decision of this Court in the case of Calcutta Gujarati Education Society (supra) by learned counsel appearing on behalf of the landlord is on a misreading of the said decision. As observed hereinabove, the said decision cannot be read to mean that the tax apportioned can be said to be part of the rent as sought to be contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord.9. Now so far as reliance being placed upon the subsequent decision of this Court in the case of Popat and Kotecha Property (supra) is concerned, at the outset, it is required to be noted that in the said decision, para 45 of the decision in the case of Calcutta Gujarati Education Society (supra) has been considered and not para 46, reproduced hereinabove. Even on facts, the said decision is not applicable. In the said decision, under the agreement the parties agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. In the present case, under the tenancy agreement, the rent payable would be Rs. 10,000/- per month which does not include the municipal taxes payable. The liability to pay the taxes under the agreement would be over and above the amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the decision of this Court in the case of Popat and Kotecha Property (supra) is not applicable to the facts of the case on hand.10. Now so far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case. | 0 | 5,670 | 1,929 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the same, sue the tenant for recovery of rent or eviction on the ground of non-payment of rent despite demand. The tenant can get protection against eviction on the ground of arrears of rent only if he makes requisite deposit of the arrears in the manner laid down in the provisions of the Tenancy Act. A provision to fictionally treat tax as rent is necessitated because in the absence of such a fiction in Section 231 of the Act, the landlord would be compelled to pay the whole amount of tax which is recoverable from him under the Act and would be left to an expensive and cumbersome remedy of filing a civil suit for recovery of such tax paid on behalf of the tenant, sub- tenant or occupant. Such a fiction is required to be incorporated under Section 231 of the Act because a private party cannot recover tax. If a lessor is obliged to pay a portion of tax leviable on the tenant, the landlord can recover the same not as tax but only as part of rent. The fiction created by the legislation in Section 231 to treat tax as rent has to be taken to its logical conclusion. The Act under consideration and the Tenancy Act, both are State legislations. No question arises of legislative incompetence. There does not appear any inter se conflict between the two Acts. Both have to be read and applied harmoniously to achieve the legislative intent in the two enactments. The contention based on Section 231 of the Act, therefore, also does not commend to us and is rejected. Thus, as observed and held by this Court in the case of Calcutta Gujarati Education Society (supra), the amount of tax due and payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997 can be recovered as arrears of rent (Section 231 of the Act 1980) and for that purpose, namely, for the purpose of recovery the tax apportioned on the tenant would be treated as rent and would be recoverable as such. The aforesaid judgment cannot be read holding that the tax apportioned on the tenant be treated as part of the rent, as contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. Merely because the obligation to pay half of the property tax and surcharge would be upon the tenant as per section 230 of the Act 1980 and the tenant is obliged to pay his share of municipal tax as an occupier of the premises under Section 5(8) of the Act 1997 and merely because for the purpose of recovery of the tax due from the tenant, such tax apportioned can be recovered as rent, such tax apportioned (half of the amount of the property tax and surcharge) cannot become part of the rent of the premises which is tenanted. For that purpose, the terms and conditions mentioned in the tenancy agreement/lease agreement are required to be considered. For example, if in the tenancy agreement if it is provided that the tenant shall pay X amount which shall include the taxes, the tax component can be said to be part of the rent. However, if under the agreement and/or even under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997, the tenant is liable to pay tax separately or half of the amount of tax now statutorily liable to be paid, the same can be recovered as arrears of rent because such tax is to be treated as rent for the purpose of recovery. However, the same cannot be said to be part of the rent. Therefore, reliance placed upon the decision of this Court in the case of Calcutta Gujarati Education Society (supra) by learned counsel appearing on behalf of the landlord is on a misreading of the said decision. As observed hereinabove, the said decision cannot be read to mean that the tax apportioned can be said to be part of the rent as sought to be contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. 9. Now so far as reliance being placed upon the subsequent decision of this Court in the case of Popat and Kotecha Property (supra) is concerned, at the outset, it is required to be noted that in the said decision, para 45 of the decision in the case of Calcutta Gujarati Education Society (supra) has been considered and not para 46, reproduced hereinabove. Even on facts, the said decision is not applicable. In the said decision, under the agreement the parties agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. In the present case, under the tenancy agreement, the rent payable would be Rs. 10,000/- per month which does not include the municipal taxes payable. The liability to pay the taxes under the agreement would be over and above the amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the decision of this Court in the case of Popat and Kotecha Property (supra) is not applicable to the facts of the case on hand. 10. Now so far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case.
### Response:
0
### Explanation:
the payment of the same, sue the tenant for recovery of rent or eviction on the ground of non-payment of rent despite demand. The tenant can get protection against eviction on the ground of arrears of rent only if he makes requisite deposit of the arrears in the manner laid down in the provisions of the Tenancy Act. A provision to fictionally treat tax as rent is necessitated because in the absence of such a fiction in Section 231 of the Act, the landlord would be compelled to pay the whole amount of tax which is recoverable from him under the Act and would be left to an expensive and cumbersome remedy of filing a civil suit for recovery of such tax paid on behalf of the tenant, sub- tenant or occupant. Such a fiction is required to be incorporated under Section 231 of the Act because a private party cannot recover tax. If a lessor is obliged to pay a portion of tax leviable on the tenant, the landlord can recover the same not as tax but only as part of rent. The fiction created by the legislation in Section 231 to treat tax as rent has to be taken to its logical conclusion. The Act under consideration and the Tenancy Act, both are State legislations. No question arises of legislative incompetence. There does not appear any inter se conflict between the two Acts. Both have to be read and applied harmoniously to achieve the legislative intent in the two enactments. The contention based on Section 231 of the Act, therefore, also does not commend to us and is rejected.Thus, as observed and held by this Court in the case of Calcutta Gujarati Education Society (supra), the amount of tax due and payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997 can be recovered as arrears of rent (Section 231 of the Act 1980) and for that purpose, namely, for the purpose of recovery the tax apportioned on the tenant would be treated as rent and would be recoverable as such. The aforesaid judgment cannot be read holding that the tax apportioned on the tenant be treated as part of the rent, as contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord. Merely because the obligation to pay half of the property tax and surcharge would be upon the tenant as per section 230 of the Act 1980 and the tenant is obliged to pay his share of municipal tax as an occupier of the premises under Section 5(8) of the Act 1997 and merely because for the purpose of recovery of the tax due from the tenant, such tax apportioned can be recovered as rent, such tax apportioned (half of the amount of the property tax and surcharge) cannot become part of the rent of the premises which is tenanted. For that purpose, the terms and conditions mentioned in the tenancy agreement/lease agreement are required to be considered. For example, if in the tenancy agreement if it is provided that the tenant shall pay X amount which shall include the taxes, the tax component can be said to be part of the rent. However, if under the agreement and/or even under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997, the tenant is liable to pay tax separately or half of the amount of tax now statutorily liable to be paid, the same can be recovered as arrears of rent because such tax is to be treated as rent for the purpose of recovery. However, the same cannot be said to be part of the rent. Therefore, reliance placed upon the decision of this Court in the case of Calcutta Gujarati Education Society (supra) by learned counsel appearing on behalf of the landlord is on a misreading of the said decision. As observed hereinabove, the said decision cannot be read to mean that the tax apportioned can be said to be part of the rent as sought to be contended by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the landlord.9. Now so far as reliance being placed upon the subsequent decision of this Court in the case of Popat and Kotecha Property (supra) is concerned, at the outset, it is required to be noted that in the said decision, para 45 of the decision in the case of Calcutta Gujarati Education Society (supra) has been considered and not para 46, reproduced hereinabove. Even on facts, the said decision is not applicable. In the said decision, under the agreement the parties agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. In the present case, under the tenancy agreement, the rent payable would be Rs. 10,000/- per month which does not include the municipal taxes payable. The liability to pay the taxes under the agreement would be over and above the amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the decision of this Court in the case of Popat and Kotecha Property (supra) is not applicable to the facts of the case on hand.10. Now so far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case.
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Far Pavilions Tours & Travels Private Limited Through Its Director, S.N. Gupta & Another Vs. Manish Pratik & Another | the respondent had permitted to construct a house in the graveyard for performing Fateha at the tombs and providing hukka tobacco to Fakirs gathering thereat. Subsequently, father of the respondent donated the said house to the respondent. Mutawalli of the graveyard and tombs had sued the respondent for recovery of the possession of the said house. The Apex Court held that in view of the explanation to Section 10 of the Limitation Act, the respondents father, who was managing the property, has to be deemed to be a trustee in whom the properties vested specifically and in as much as respondent was a Company and was not a transferee for valuable consideration. It was held that Section 10 of the Limitation Act applied and possession could be recovered from the defendant without any limitation as to time.21. Mr. Lawande, learned Counsel for the plaintiff has not disputed the position that if the Directors are trustees, then Section 10 is applicable. According to him, however, the Directors of a Company can never be termed as trustees within the meaning of Section 10 of the Limitation Act. Learned Counsel submitted that the Judgment in the case of Nanalal Zaver (supra), cannot be applied to the present case. He submitted that in the case of Nanalal Zaver (supra), the position of Directors was considered with regard to the provision of Section 105-C of the Indian Companies Act whereas in the present case the position of the Directors with regard to Section 10 of the Limitation Act is in question. In the case of Bangalore Turf Club Limited (supra), relied upon by the learned Counsel for the plaintiff, in this regard, the Apex Court has held thus:7. Under various labour laws different definitions have been given to the words industry or factory, etc. and we cannot apply the definition in one Act to that in another Act (unless the statute specifically says so). It is only where the language used in the definition is in pari material that this may be possible. Hence, we are of the opinion that the decision of this Court in .Hyderabad Race Club should be reconsidered by a larger Bench. In the meantime, the respondents shall not raise any demand against the appellant-Club.22. In the case of V. Narsimha Aiyangar, official (supra), one of the questions was whether the Directors of Companies under the Indian Companies Act are trustees for the purpose of Section 10 of the Limitation Act. It has been held that it is now well settled that the Directors of Company are not trustees, but they are no doubt trustees of assets which have come into their hands or which are under their control, but they are not trustees of a debt due to the Company. It has been further held that generally speaking, a person, who is not the appointed trustee and whom it is sought to affect with a trust by reason of his conduct is not a trustee at all although he may be liable as if he were, which is commonly expressed by saying that he is not an express but constructive trustee.23. The Judgment in the case of Bangalore Turf Club Limited (supra), in our view is not applicable to the present cases, since there is no question of any definition of any words involved here. The interpretation of the expression director of Company is involved here. Considering the above judgments, more particularly, the Judgment in the case of Wali Mohammed (dead) by LRs (supra) and in the case of V. Narsimha Aiyangar, official (supra), we are of the view that the trial Court will have to determine whether the defendants were constructive trustees. It is not possible to say at this stage that the defendant no. 1 does not have an arguable case at all. In paragraph 22 of the counter claim, the defendant no. 1 has specifically pleaded that the plaintiff in law holds the suit property in trust for the defendant no. 1 and has prayed for declaration that the suit property is held in trust by the plaintiff on behalf of the defendant no. 1. The defendant no. 1 has also specifically pleaded in the counter claims that the cause of action for the suit is covered by the provisions of Section 10 of the Limitation Act and the reliefs, therefore, are not barred by limitation. The defendant no. 1 in the counter claims has pleaded for a direction that the plaintiff holds the suit property, more particularly described in schedule, in trust for the defendant no. 1 and it has prayed for a direction to the plaintiff to execute a conveyance in respect of the suit property in favour of the defendant no. 1 and to do all acts, deeds and things that may be necessary to perfect the defendant no. 1s title in respect of the suit property. The Court cannot take into account any material beyond the counter claims. In view of the above, the counter claims, at this stage, do not appear to be barred by any law from the statements made therein. The learned trial Court held that Section 10 of the Limitation Act is not applicable to the case. The trial Court ought to have directed the plaintiff to file written statement to the counter claims and to take all the objections and ought to have framed the issues and if necessary could have directed that the question of limitation ought to be decided as a preliminary issue. In our view, the learned trial Court has committed error in rejecting the counter claims, at this stage only.24. we are, therefore, of the considered view that the impugned order of rejection of the counter claims is not sustainable and, therefore, deserves to be dismissed. The point of application of Section 10 of the Limitation Act and the point whether the counter claims are barred by limitation, ought to be decided after framing of the issues and leading evidence on the said points. | 1[ds]In the present appeals, along with Vakalatnama of the Advocate, the defendants have filed before this Court, a certified true copy of the resolution dated 20/04/2011, passed by the Board of Directors of the defendant no. 1 thereby authorising said Shri Manuel Paully DSouza to appear for and on behalf of the Company before police or other authority or before any Court, criminal or civil, including without limitation, courts of first instance or appellate courts and revisional courts, in order to initiate or prosecute criminal and civil cases (including ancillary, incidental or consequential proceedings) againstof Far Pavilion Tours and Travels Private limited named therein for offences mentioned therein and also against other known or unknown persons involved in the said offences and in this regard to sign, verify and file criminal complaints, FIRs, claims, plaints, writ petitions, written statements, rejoinders, replications. Vakalatnamas, affidavits, papers and documents as may be necessary, in the name of and on behalf of the Company and generally to do all acts, deeds or things as may be necessary or proper for the purpose mentioned above. A notarised true copy of the letter of authority dated 21/04/2010 given to said Manuel Paully DSouza by the defendant no. 2 and accepted by him has also been produced. Still, if any irregularity is there, then the same can be rectified. Hence, it would not be proper to say that the appeals are not maintainable for want of resolution ofshould be kept in mind that the power to reject the plaint should be exercised in exceptional circumstances and the Court cannot take into account any material beyond the plaint. In the case of T. Arivandandam V/s T. V. Satyapal and Anr., reported in (1997) 4 SCC 467, the Apex Court has held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious and merit less, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein isthe present case, the defendants have pleaded that the cause of action for the counter claim is covered by Section 10 of the Limitation Act and, therefore, the reliefs are not barred by time.The Judgment in the case of Bangalore Turf Club Limited (supra), in our view is not applicable to the present cases, since there is no question of any definition of any words involved here. The interpretation of the expression director of Company is involved here. Considering the above judgments, more particularly, the Judgment in the case of Wali Mohammed (dead) by LRs (supra) and in the case of V. Narsimha Aiyangar, official (supra), we are of the view that the trial Court will have to determine whether the defendants were constructive trustees. It is not possible to say at this stage that the defendant no. 1 does not have an arguable case at all. In paragraph 22 of the counter claim, the defendant no. 1 has specifically pleaded that the plaintiff in law holds the suit property in trust for the defendant no. 1 and has prayed for declaration that the suit property is held in trust by the plaintiff on behalf of the defendant no. 1. The defendant no. 1 has also specifically pleaded in the counter claims that the cause of action for the suit is covered by the provisions of Section 10 of the Limitation Act and the reliefs, therefore, are not barred by limitation. The defendant no. 1 in the counter claims has pleaded for a direction that the plaintiff holds the suit property, more particularly described in schedule, in trust for the defendant no. 1 and it has prayed for a direction to the plaintiff to execute a conveyance in respect of the suit property in favour of the defendant no. 1 and to do all acts, deeds and things that may be necessary to perfect the defendant no. 1s title in respect of the suit property. The Court cannot take into account any material beyond the counter claims. In view of the above, the counter claims, at this stage, do not appear to be barred by any law from the statements made therein. The learned trial Court held that Section 10 of the Limitation Act is not applicable to the case. The trial Court ought to have directed the plaintiff to file written statement to the counter claims and to take all the objections and ought to have framed the issues and if necessary could have directed that the question of limitation ought to be decided as a preliminary issue. In our view, the learned trial Court has committed error in rejecting the counter claims, at this stage only.24. we are, therefore, of the considered view that the impugned order of rejection of the counter claims is not sustainable and, therefore, deserves to be dismissed. The point of application of Section 10 of the Limitation Act and the point whether the counter claims are barred by limitation, ought to be decided after framing of the issues and leading evidence on the said points. | 1 | 5,476 | 960 | ### Instruction:
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the respondent had permitted to construct a house in the graveyard for performing Fateha at the tombs and providing hukka tobacco to Fakirs gathering thereat. Subsequently, father of the respondent donated the said house to the respondent. Mutawalli of the graveyard and tombs had sued the respondent for recovery of the possession of the said house. The Apex Court held that in view of the explanation to Section 10 of the Limitation Act, the respondents father, who was managing the property, has to be deemed to be a trustee in whom the properties vested specifically and in as much as respondent was a Company and was not a transferee for valuable consideration. It was held that Section 10 of the Limitation Act applied and possession could be recovered from the defendant without any limitation as to time.21. Mr. Lawande, learned Counsel for the plaintiff has not disputed the position that if the Directors are trustees, then Section 10 is applicable. According to him, however, the Directors of a Company can never be termed as trustees within the meaning of Section 10 of the Limitation Act. Learned Counsel submitted that the Judgment in the case of Nanalal Zaver (supra), cannot be applied to the present case. He submitted that in the case of Nanalal Zaver (supra), the position of Directors was considered with regard to the provision of Section 105-C of the Indian Companies Act whereas in the present case the position of the Directors with regard to Section 10 of the Limitation Act is in question. In the case of Bangalore Turf Club Limited (supra), relied upon by the learned Counsel for the plaintiff, in this regard, the Apex Court has held thus:7. Under various labour laws different definitions have been given to the words industry or factory, etc. and we cannot apply the definition in one Act to that in another Act (unless the statute specifically says so). It is only where the language used in the definition is in pari material that this may be possible. Hence, we are of the opinion that the decision of this Court in .Hyderabad Race Club should be reconsidered by a larger Bench. In the meantime, the respondents shall not raise any demand against the appellant-Club.22. In the case of V. Narsimha Aiyangar, official (supra), one of the questions was whether the Directors of Companies under the Indian Companies Act are trustees for the purpose of Section 10 of the Limitation Act. It has been held that it is now well settled that the Directors of Company are not trustees, but they are no doubt trustees of assets which have come into their hands or which are under their control, but they are not trustees of a debt due to the Company. It has been further held that generally speaking, a person, who is not the appointed trustee and whom it is sought to affect with a trust by reason of his conduct is not a trustee at all although he may be liable as if he were, which is commonly expressed by saying that he is not an express but constructive trustee.23. The Judgment in the case of Bangalore Turf Club Limited (supra), in our view is not applicable to the present cases, since there is no question of any definition of any words involved here. The interpretation of the expression director of Company is involved here. Considering the above judgments, more particularly, the Judgment in the case of Wali Mohammed (dead) by LRs (supra) and in the case of V. Narsimha Aiyangar, official (supra), we are of the view that the trial Court will have to determine whether the defendants were constructive trustees. It is not possible to say at this stage that the defendant no. 1 does not have an arguable case at all. In paragraph 22 of the counter claim, the defendant no. 1 has specifically pleaded that the plaintiff in law holds the suit property in trust for the defendant no. 1 and has prayed for declaration that the suit property is held in trust by the plaintiff on behalf of the defendant no. 1. The defendant no. 1 has also specifically pleaded in the counter claims that the cause of action for the suit is covered by the provisions of Section 10 of the Limitation Act and the reliefs, therefore, are not barred by limitation. The defendant no. 1 in the counter claims has pleaded for a direction that the plaintiff holds the suit property, more particularly described in schedule, in trust for the defendant no. 1 and it has prayed for a direction to the plaintiff to execute a conveyance in respect of the suit property in favour of the defendant no. 1 and to do all acts, deeds and things that may be necessary to perfect the defendant no. 1s title in respect of the suit property. The Court cannot take into account any material beyond the counter claims. In view of the above, the counter claims, at this stage, do not appear to be barred by any law from the statements made therein. The learned trial Court held that Section 10 of the Limitation Act is not applicable to the case. The trial Court ought to have directed the plaintiff to file written statement to the counter claims and to take all the objections and ought to have framed the issues and if necessary could have directed that the question of limitation ought to be decided as a preliminary issue. In our view, the learned trial Court has committed error in rejecting the counter claims, at this stage only.24. we are, therefore, of the considered view that the impugned order of rejection of the counter claims is not sustainable and, therefore, deserves to be dismissed. The point of application of Section 10 of the Limitation Act and the point whether the counter claims are barred by limitation, ought to be decided after framing of the issues and leading evidence on the said points.
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In the present appeals, along with Vakalatnama of the Advocate, the defendants have filed before this Court, a certified true copy of the resolution dated 20/04/2011, passed by the Board of Directors of the defendant no. 1 thereby authorising said Shri Manuel Paully DSouza to appear for and on behalf of the Company before police or other authority or before any Court, criminal or civil, including without limitation, courts of first instance or appellate courts and revisional courts, in order to initiate or prosecute criminal and civil cases (including ancillary, incidental or consequential proceedings) againstof Far Pavilion Tours and Travels Private limited named therein for offences mentioned therein and also against other known or unknown persons involved in the said offences and in this regard to sign, verify and file criminal complaints, FIRs, claims, plaints, writ petitions, written statements, rejoinders, replications. Vakalatnamas, affidavits, papers and documents as may be necessary, in the name of and on behalf of the Company and generally to do all acts, deeds or things as may be necessary or proper for the purpose mentioned above. A notarised true copy of the letter of authority dated 21/04/2010 given to said Manuel Paully DSouza by the defendant no. 2 and accepted by him has also been produced. Still, if any irregularity is there, then the same can be rectified. Hence, it would not be proper to say that the appeals are not maintainable for want of resolution ofshould be kept in mind that the power to reject the plaint should be exercised in exceptional circumstances and the Court cannot take into account any material beyond the plaint. In the case of T. Arivandandam V/s T. V. Satyapal and Anr., reported in (1997) 4 SCC 467, the Apex Court has held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious and merit less, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein isthe present case, the defendants have pleaded that the cause of action for the counter claim is covered by Section 10 of the Limitation Act and, therefore, the reliefs are not barred by time.The Judgment in the case of Bangalore Turf Club Limited (supra), in our view is not applicable to the present cases, since there is no question of any definition of any words involved here. The interpretation of the expression director of Company is involved here. Considering the above judgments, more particularly, the Judgment in the case of Wali Mohammed (dead) by LRs (supra) and in the case of V. Narsimha Aiyangar, official (supra), we are of the view that the trial Court will have to determine whether the defendants were constructive trustees. It is not possible to say at this stage that the defendant no. 1 does not have an arguable case at all. In paragraph 22 of the counter claim, the defendant no. 1 has specifically pleaded that the plaintiff in law holds the suit property in trust for the defendant no. 1 and has prayed for declaration that the suit property is held in trust by the plaintiff on behalf of the defendant no. 1. The defendant no. 1 has also specifically pleaded in the counter claims that the cause of action for the suit is covered by the provisions of Section 10 of the Limitation Act and the reliefs, therefore, are not barred by limitation. The defendant no. 1 in the counter claims has pleaded for a direction that the plaintiff holds the suit property, more particularly described in schedule, in trust for the defendant no. 1 and it has prayed for a direction to the plaintiff to execute a conveyance in respect of the suit property in favour of the defendant no. 1 and to do all acts, deeds and things that may be necessary to perfect the defendant no. 1s title in respect of the suit property. The Court cannot take into account any material beyond the counter claims. In view of the above, the counter claims, at this stage, do not appear to be barred by any law from the statements made therein. The learned trial Court held that Section 10 of the Limitation Act is not applicable to the case. The trial Court ought to have directed the plaintiff to file written statement to the counter claims and to take all the objections and ought to have framed the issues and if necessary could have directed that the question of limitation ought to be decided as a preliminary issue. In our view, the learned trial Court has committed error in rejecting the counter claims, at this stage only.24. we are, therefore, of the considered view that the impugned order of rejection of the counter claims is not sustainable and, therefore, deserves to be dismissed. The point of application of Section 10 of the Limitation Act and the point whether the counter claims are barred by limitation, ought to be decided after framing of the issues and leading evidence on the said points.
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C.I.T. West Bengal Ii, Calcutta Vs. Coal Shipment (P) Ltd | agreed between the parties. The dictum laid down by this Court in Travancore Sugars and Chemicals Ltd. v. Commr. of Income-tax, Kerala, 62 ITR 566 = (AIR 1967 SC 477 ) in the circumstances is attracted. The appellant company in that case was to take over the assets of sugar manufacturing concern a distillery and a tincture factory of the Government of Travancore. The promoters of the appellant company in that connection entered into an agreement with the Government. The cash consideration for the sale of the assets of the sugar manufacturing concern was Rupees 3.25 lakhs, that for the sale of the distillery was agreed to be arrived at as a result of joint valuation and that for the sale of the assets of the tincture factory was the book value. The Government agreed to recognise the transfer of the licence for the distillery to the appellant company and to secure the continuance of the licence for a period of 5 years after the termination of the existing licence. The Government also agreed to purchase the pharmaceutical products manufactured by the appellant company. Apart from the cash consideration, Clause 7 of the agreement provided that the Government would be entitled to 20 per cent of the annual net profits subject to a maximum of Rupees 40,000/- after providing for depreciation and remuneration of the secretaries and treasurers. Clause 7 was amended in January, 1947 to the effect that the Government would be entitled to 10 per cent. of the annual net profits. Question arose whether an amount of Rupees 42,480/- which was payable under Clause 7 of the agreement was a permissible expenditure under Section 10 of the Income-tax Act. It was held that the above payment was in the nature of revenue expenditure and not capital expenditure. Ramaswami J. speaking for the Court dealt with the matter in the following words :- Examining the transaction from this point of view, it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appellant was: (1) the cash consideration mentioned in the principal agreement, viz. Clauses 3, 4 (a) and 5 (a) and (2) the consideration, that the Government shall be entitled to twenty per cent. of the net profits earned by the appellant in every year subject to a maximum of Rupees 40,000/- per annum. With regard to the second part of the consideration there are three important points to be noticed. In the first place, the payment of commission of twenty per cent. on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time attached to it. In the second place, the payment of the commission is related to the annual profits which flow from the trading activities of the appellant-company and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent. commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in this part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended by the parties. The above observations in our opinion have a direct bearing on the present case. 17. Mr. Desai has referred to the following observations of Lord Greens in Henriksen (Inspector of Taxes) v. Grafton Hotel Ltd., (1943) 11 ITR (Supp) 10 :- It appears to me that there can be no difference in principle between a payment out-and-out for monopoly value and a payment in respect of a term. Each licence granted for a term must stand by itself since an application for its renewal falls to be treated as an application for a new licence. This is what I mean when I say that there is a false appearance of periodicity about these payments. Whenever a licence is granted for a term, the payment is made as on a purchase of monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term, and so on. The payments are recurrent if the licence is renewed; they are not periodical, so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality although its permanence being conditioned by the length of the term is short-lived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease which is admittedly not deductible. 18. Particular reliance has been placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, has to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity. Such payments, in the opinion of the Court, fell into the same class as a premium paid on the grant of a lease and as such should be regarded as capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it. | 0[ds]8. We have heard Mr. Desai on behalf of the appellant and Mr. Palkhiwala on behalf of the respondent and are of the opinion that there is no merit in these appeals. The Tribunal has found that the amounts in question were paid by the respondent to M/s. H. V. Low and Co. Ltd. in pursuance of the agreement according to which M/s. H. V. Low and Co. Ltd. were to assist the respondent in procuring coal for shipment to Burma and were themselves not to export coal to Burma during the subsistence of the agreement. The above findings of fact are for the purpose of these proceedings, binding upon the appellant and consequently no attempt was made either in the High Court or in this Court to assail them. The payments which were made by the respondent to M/s. H. V. Low and Co. Ltd., it would thus appear were because of the assistance rendered by them for shipment of coal to Burma and for abstaining from exporting coal to Burma during the subsistence of the agreement. So far as the payment is concerned which was made to M/s. H. V. Low and Co. Ltd. for assistance to the respondent in procuring coal for shipment to Burma, it was admittedly an item of revenue expenditure. The controversy between the parties has centered on the point as to whether that part of the payment which was made because of M/s. H. V. Low and Co. Ltd. having agreed not to export coal to Burma during the subsistence of the agreement constituted capital expenditure or revenue expenditure9. Mr. Desai on behalf of the appellant contends that as the payment was made for warding off competition by rival coal exporters, the payment should be held to be a capital expenditure. The fact that there was no certainty of the duration of the arrangement between the respondent and M/s. H. V. Low and Co. and the same could be terminated at any time, according to the learned counsel, is wholly immaterial. As against that, Mr. Palkhiwala argues that in order to constitute capital expenditure, the object of the expenditure should be to secure an advantage of enduring nature. When there is no certainty of the duration of the arrangement and the same can be revoked at any time, the advantage cannot be said to be of an enduring character and the expenditure cannot be held to be of a capital nature. Further as the payment was related to the quantum of coal shipped to Burma in the course of trading activity and was not connected with the capital value of the assets, the payment, Mr. Palkhiwala submits, should be considered to be revenue expenditure. In our opinion, there is considerable force in Mr. Palkhiwalas submissionAny other view would have the effect of rendering the word enduring to be meaningless. No cogent ground or valid reason has been given to us in support of the contention that even though the benefit from the arrangement to the respondent may not be of a permanent or enduring nature, the payments made in pursuance of that arrangement would still be capital expenditure. Such a contention indeed was repelled by the Judicial Committee in the case of Commr. of Taxes v. Nechanga Consolidated Copper Mines Ltd., (1965) 58 ITR 241. The respondent company in that case together with two other companiesRhokana Corporation Ltd. and Bancroft Mines Ltd. formed a group for carrying on the business of copper mining. Following a steep fall in the price of copper in the world market the group, in common with other producers, decided voluntarily to cut their production by 10 per cent. In effecting the cut, it was agreed that Bancroft Mines Ltd. should cease production for one year and that the respondent company and Rhokana Corporation Ltd. should undertake between them the whole group programme for the year reduced by the overall cut of 10 per cent. It was further agreed to pay a sum to Bancroft Mines Ltd. to compensate it for the abandonment of the production for the year. Question arose whether the compensation which the respondent Company had paid to Bancroft Mines Ltd. was expenditure of capital nature? The Judicial Committee held that the compensation paid was an allowable deduction in determining the respondent Companys taxable income. The expenditure, in the view of the Judicial Committee, had no analogy with expenditure for the purpose of acquiring a business or a benefit of long term or enduring contractAlthough we agree that payment made to ward off competition in business to a rival dealer would constitute capital expenditure if the object of making that payment is to derive an advantage by eliminating the competition over some length of time, the same result would not allow if there is no certainty of the duration of the advantage and the same can be put to an end at any time. How long the period of contemplated advantage should be in order to constitute enduring benefit would depend upon the circumstances and the facts of each individual case18. Particular reliance has been placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, has to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity. Such payments, in the opinion of the Court, fell into the same class as a premium paid on the grant of a lease and as such should be regarded as capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it. | 0 | 4,833 | 1,105 | ### 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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agreed between the parties. The dictum laid down by this Court in Travancore Sugars and Chemicals Ltd. v. Commr. of Income-tax, Kerala, 62 ITR 566 = (AIR 1967 SC 477 ) in the circumstances is attracted. The appellant company in that case was to take over the assets of sugar manufacturing concern a distillery and a tincture factory of the Government of Travancore. The promoters of the appellant company in that connection entered into an agreement with the Government. The cash consideration for the sale of the assets of the sugar manufacturing concern was Rupees 3.25 lakhs, that for the sale of the distillery was agreed to be arrived at as a result of joint valuation and that for the sale of the assets of the tincture factory was the book value. The Government agreed to recognise the transfer of the licence for the distillery to the appellant company and to secure the continuance of the licence for a period of 5 years after the termination of the existing licence. The Government also agreed to purchase the pharmaceutical products manufactured by the appellant company. Apart from the cash consideration, Clause 7 of the agreement provided that the Government would be entitled to 20 per cent of the annual net profits subject to a maximum of Rupees 40,000/- after providing for depreciation and remuneration of the secretaries and treasurers. Clause 7 was amended in January, 1947 to the effect that the Government would be entitled to 10 per cent. of the annual net profits. Question arose whether an amount of Rupees 42,480/- which was payable under Clause 7 of the agreement was a permissible expenditure under Section 10 of the Income-tax Act. It was held that the above payment was in the nature of revenue expenditure and not capital expenditure. Ramaswami J. speaking for the Court dealt with the matter in the following words :- Examining the transaction from this point of view, it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appellant was: (1) the cash consideration mentioned in the principal agreement, viz. Clauses 3, 4 (a) and 5 (a) and (2) the consideration, that the Government shall be entitled to twenty per cent. of the net profits earned by the appellant in every year subject to a maximum of Rupees 40,000/- per annum. With regard to the second part of the consideration there are three important points to be noticed. In the first place, the payment of commission of twenty per cent. on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time attached to it. In the second place, the payment of the commission is related to the annual profits which flow from the trading activities of the appellant-company and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent. commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in this part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended by the parties. The above observations in our opinion have a direct bearing on the present case. 17. Mr. Desai has referred to the following observations of Lord Greens in Henriksen (Inspector of Taxes) v. Grafton Hotel Ltd., (1943) 11 ITR (Supp) 10 :- It appears to me that there can be no difference in principle between a payment out-and-out for monopoly value and a payment in respect of a term. Each licence granted for a term must stand by itself since an application for its renewal falls to be treated as an application for a new licence. This is what I mean when I say that there is a false appearance of periodicity about these payments. Whenever a licence is granted for a term, the payment is made as on a purchase of monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term, and so on. The payments are recurrent if the licence is renewed; they are not periodical, so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality although its permanence being conditioned by the length of the term is short-lived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease which is admittedly not deductible. 18. Particular reliance has been placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, has to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity. Such payments, in the opinion of the Court, fell into the same class as a premium paid on the grant of a lease and as such should be regarded as capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it.
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0
### Explanation:
Tribunal has found that the amounts in question were paid by the respondent to M/s. H. V. Low and Co. Ltd. in pursuance of the agreement according to which M/s. H. V. Low and Co. Ltd. were to assist the respondent in procuring coal for shipment to Burma and were themselves not to export coal to Burma during the subsistence of the agreement. The above findings of fact are for the purpose of these proceedings, binding upon the appellant and consequently no attempt was made either in the High Court or in this Court to assail them. The payments which were made by the respondent to M/s. H. V. Low and Co. Ltd., it would thus appear were because of the assistance rendered by them for shipment of coal to Burma and for abstaining from exporting coal to Burma during the subsistence of the agreement. So far as the payment is concerned which was made to M/s. H. V. Low and Co. Ltd. for assistance to the respondent in procuring coal for shipment to Burma, it was admittedly an item of revenue expenditure. The controversy between the parties has centered on the point as to whether that part of the payment which was made because of M/s. H. V. Low and Co. Ltd. having agreed not to export coal to Burma during the subsistence of the agreement constituted capital expenditure or revenue expenditure9. Mr. Desai on behalf of the appellant contends that as the payment was made for warding off competition by rival coal exporters, the payment should be held to be a capital expenditure. The fact that there was no certainty of the duration of the arrangement between the respondent and M/s. H. V. Low and Co. and the same could be terminated at any time, according to the learned counsel, is wholly immaterial. As against that, Mr. Palkhiwala argues that in order to constitute capital expenditure, the object of the expenditure should be to secure an advantage of enduring nature. When there is no certainty of the duration of the arrangement and the same can be revoked at any time, the advantage cannot be said to be of an enduring character and the expenditure cannot be held to be of a capital nature. Further as the payment was related to the quantum of coal shipped to Burma in the course of trading activity and was not connected with the capital value of the assets, the payment, Mr. Palkhiwala submits, should be considered to be revenue expenditure. In our opinion, there is considerable force in Mr. Palkhiwalas submissionAny other view would have the effect of rendering the word enduring to be meaningless. No cogent ground or valid reason has been given to us in support of the contention that even though the benefit from the arrangement to the respondent may not be of a permanent or enduring nature, the payments made in pursuance of that arrangement would still be capital expenditure. Such a contention indeed was repelled by the Judicial Committee in the case of Commr. of Taxes v. Nechanga Consolidated Copper Mines Ltd., (1965) 58 ITR 241. The respondent company in that case together with two other companiesRhokana Corporation Ltd. and Bancroft Mines Ltd. formed a group for carrying on the business of copper mining. Following a steep fall in the price of copper in the world market the group, in common with other producers, decided voluntarily to cut their production by 10 per cent. In effecting the cut, it was agreed that Bancroft Mines Ltd. should cease production for one year and that the respondent company and Rhokana Corporation Ltd. should undertake between them the whole group programme for the year reduced by the overall cut of 10 per cent. It was further agreed to pay a sum to Bancroft Mines Ltd. to compensate it for the abandonment of the production for the year. Question arose whether the compensation which the respondent Company had paid to Bancroft Mines Ltd. was expenditure of capital nature? The Judicial Committee held that the compensation paid was an allowable deduction in determining the respondent Companys taxable income. The expenditure, in the view of the Judicial Committee, had no analogy with expenditure for the purpose of acquiring a business or a benefit of long term or enduring contractAlthough we agree that payment made to ward off competition in business to a rival dealer would constitute capital expenditure if the object of making that payment is to derive an advantage by eliminating the competition over some length of time, the same result would not allow if there is no certainty of the duration of the advantage and the same can be put to an end at any time. How long the period of contemplated advantage should be in order to constitute enduring benefit would depend upon the circumstances and the facts of each individual case18. Particular reliance has been placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, has to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity. Such payments, in the opinion of the Court, fell into the same class as a premium paid on the grant of a lease and as such should be regarded as capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it.
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Amrit Banaspati Co. Ltd Vs. S. Taki Bilgrami & Ors | After an analysis of the contents of items 3 and 10 of Schedule I and item I of Schedule II, it has been held that item I relates only to posts and not to the personnel occupying the posts. Dealing with item No. I of Schedule II this Court observes as follows :"Furthermore, the language of item No. I of Schedule I clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore it clearly contemplates posts. Again this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of item No. I of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice." 25. From the above observations, it is clear that unless there is a reduction in posts, item I to Schedule II will have no application and in consequence there is no necessity to give a notice of change under S.46(2) read with S.42(1) of the Act. In the light of the above principles, if we examine the facts of the case before us, it is clear that on the closure of the third shift what the employer did was to retrench the employees working in that shift as they were found to be surplus in the establishment. Therefore, it was a case of reduction of persons employed and not one of reduction of the number of persons employed. Hence it is not a case or reduction of posts. 26. The matter can be considered from another point of view. Item No. I of Schedule II leaving out the portions which are not necessary for the present case refers to :"reduction intended to be of permanent or semi-permanent character in the number of persons to be employed in a shift." 27. If read in that manner it is clear that the shift is not abolished but is working and the employer effects a reduction in the number of persons employed in the shift. Under such a contingency, it may be considered that the employer has effected a reduction in the posts occupied by the persons whose services have been terminated, in which case it will be an illegal change unless notice has been given under S.42(1) as contemplated by S.46(2) of the Act. That is, for instance if twenty persons occupying twenty posts are necessary to work a shift and if five persons are sent out, that will amount to a reduction office posts, in consequence of which the work load on the remaining fifteen persons may be more. In these circumstances the Act provides for giving a notice of change and under S. 42(1) copies of such notice have to be given, apart from the representative of employees, to the Chief Conciliator and other officers mentioned therein. That will be a case of reduction of posts. But when the working of the entire shift is stopped there is no question of a reduction in the number of persons employed in a shift. On the other hand it is a case of termination of employment of all the persons employed in that shift which has been stopped. Such a case will not attract item No. I of Schedule II. To the employees whose services have been so terminated as the consequence of the closure of the entire shift, though other remedies are available to them in law, they cannot invoke item No. I of Schedule II. 28. We may also refer briefly to the facts of the case reported in Chaganlal Textile Mills Private Ltd. v. Chalisgaon Girni Kamgar Union, A.I.R. 1959 S.C. 722. On July 9, 1957 the company therein gave notice that the working of the second shift in their mill would be discontinued after one month. On August 9, 1957 the second shift was actually closed in terms of the notice. Fourteen employees, who were not workmen in the second shift but whose services were necessary to make all arrangements ready for the second shift to start working, were served with the notice on September 1, 1957 that their services were terminated. They were paid retrenchment compensation and other dues according to law. On November 9, 1957 the company gave a notice called "notice of change" that it wished to abolish 27 posts including the posts held by the 14 employees, whose services were terminated by the notice dated November 1, 1957. Even under those circumstances this court held that the notice given on November 1, 1957 terminating the services of 14 employees was only by way of retrenchment and was legal. It was further emphasized that as the said notice was legal, it did not cease to be so because within eight days a notice of change was also given. In the case before us it is not contended that the three clerks to whom notice had been given on January 7, 1958 were not given proper notice and that their dues have not been paid. Nor is it contended that after the admitted closure of the third shift with effect from December 8, 1957 the services of these three clerks did not become surplus to the appellant. We are satisfied that the notice dated January 7, 1958 is only a notice of retrenchment of surplus staff. By that notice the appellant has not effected any reduction in posts so as to attract item No. I of Schedule II, read with Ss.42(1) and 46(2) of the Act. If that is so, it follows that by terminating the services of the three clerks, the appellant has not made any illegal change within the meaning of S.46 of the Act. | 0[ds]22. We have already indicated that the Industrial Court, in particular, has placed very great reliance on the letter dated February 10, 1958 for holding that by terminating the service of the clerks, the appellant has really effected a reduction in the clerical strength of the establishment which has the effect of reducing the posts of clerks. In fact the Industrial Court goes further and holds that there is an admission by the management itself in the said letter regarding their having effected reduction in the posts of clerks. This interpretation has found favour with the High Court23. We are not inclined to agree with the learned Judges of the High Court in the interpretation placed on the letter dated February 10, 1958. The letter which has to be read as a whole clearly indicates that the termination of the services of the clerks was necessitated owing to the closure of the third shift and that the reduction in the clerical strength in consequence of such termination has not resulted in any increase in the work load of others. This itself clearly shows that the appellants have not effected any reduction in the posts of clerks. On the other hand, they have only effected a retrenchment of the clerks, whom they considered to be surplus, in consequence of the closure of the third shift. There is a marked difference between the matters dealt with under items 3 and 10 of Schedule I and item I of Schedule II24. Item I of Schedule II has come up for consideration before this Court in Chaganlal Textile Mills Private Ltd. v. Chalisgaon Girni Kamgar Union, A.I.R. 1959 S.C. 722. After an analysis of the contents of items 3 and 10 of Schedule I and item I of Schedule II, it has been held that item I relates only to posts and not to the personnel occupying the posts. Dealing with item No. I of Schedule II this Court observes as follows :"Furthermore, the language of item No. I of Schedule I clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore it clearly contemplates posts. Again this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of item No. I of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice."25. From the above observations, it is clear that unless there is a reduction in posts, item I to Schedule II will have no application and in consequence there is no necessity to give a notice of change under S.46(2) read with S.42(1) of the Act. In the light of the above principles, if we examine the facts of the case before us, it is clear that on the closure of the third shift what the employer did was to retrench the employees working in that shift as they were found to be surplus in the establishment. Therefore, it was a case of reduction of persons employed and not one of reduction of the number of persons employed. Hence it is not a case or reduction of posts26. The matter can be considered from another point of view. Item No. I of Schedule II leaving out the portions which are not necessary for the present case refers to :"reduction intended to be of permanent or semi-permanent character in the number of persons to be employed in a shift."27. If read in that manner it is clear that the shift is not abolished but is working and the employer effects a reduction in the number of persons employed in the shift. Under such a contingency, it may be considered that the employer has effected a reduction in the posts occupied by the persons whose services have been terminated, in which case it will be an illegal change unless notice has been given under S.42(1) as contemplated by S.46(2) of the Act. That is, for instance if twenty persons occupying twenty posts are necessary to work a shift and if five persons are sent out, that will amount to a reduction office posts, in consequence of which the work load on the remaining fifteen persons may be more. In these circumstances the Act provides for giving a notice of change and under S. 42(1) copies of such notice have to be given, apart from the representative of employees, to the Chief Conciliator and other officers mentioned therein. That will be a case of reduction of posts. But when the working of the entire shift is stopped there is no question of a reduction in the number of persons employed in a shift. On the other hand it is a case of termination of employment of all the persons employed in that shift which has been stopped. Such a case will not attract item No. I of Schedule II. To the employees whose services have been so terminated as the consequence of the closure of the entire shift, though other remedies are available to them in law, they cannot invoke item No. I of Schedule II28. We may also refer briefly to the facts of the case reported in Chaganlal Textile Mills Private Ltd. v. Chalisgaon Girni Kamgar Union, A.I.R. 1959 S.C. 722. On July 9, 1957 the company therein gave notice that the working of the second shift in their mill would be discontinued after one month. On August 9, 1957 the second shift was actually closed in terms of the notice. Fourteen employees, who were not workmen in the second shift but whose services were necessary to make all arrangements ready for the second shift to start working, were served with the notice on September 1, 1957 that their services were terminated. They were paid retrenchment compensation and other dues according to law. On November 9, 1957 the company gave a notice called "notice of change" that it wished to abolish 27 posts including the posts held by the 14 employees, whose services were terminated by the notice dated November 1, 1957. Even under those circumstances this court held that the notice given on November 1, 1957 terminating the services of 14 employees was only by way of retrenchment and was legal. It was further emphasized that as the said notice was legal, it did not cease to be so because within eight days a notice of change was also given. In the case before us it is not contended that the three clerks to whom notice had been given on January 7, 1958 were not given proper notice and that their dues have not been paid. Nor is it contended that after the admitted closure of the third shift with effect from December 8, 1957 the services of these three clerks did not become surplus to the appellant. We are satisfied that the notice dated January 7, 1958 is only a notice of retrenchment of surplus staff. By that notice the appellant has not effected any reduction in posts so as to attract item No. I of Schedule II, read with Ss.42(1) and 46(2) of the Act. If that is so, it follows that by terminating the services of the three clerks, the appellant has not made any illegal change within the meaning of S.46 of the Act. | 0 | 4,724 | 1,407 | ### 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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After an analysis of the contents of items 3 and 10 of Schedule I and item I of Schedule II, it has been held that item I relates only to posts and not to the personnel occupying the posts. Dealing with item No. I of Schedule II this Court observes as follows :"Furthermore, the language of item No. I of Schedule I clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore it clearly contemplates posts. Again this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of item No. I of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice." 25. From the above observations, it is clear that unless there is a reduction in posts, item I to Schedule II will have no application and in consequence there is no necessity to give a notice of change under S.46(2) read with S.42(1) of the Act. In the light of the above principles, if we examine the facts of the case before us, it is clear that on the closure of the third shift what the employer did was to retrench the employees working in that shift as they were found to be surplus in the establishment. Therefore, it was a case of reduction of persons employed and not one of reduction of the number of persons employed. Hence it is not a case or reduction of posts. 26. The matter can be considered from another point of view. Item No. I of Schedule II leaving out the portions which are not necessary for the present case refers to :"reduction intended to be of permanent or semi-permanent character in the number of persons to be employed in a shift." 27. If read in that manner it is clear that the shift is not abolished but is working and the employer effects a reduction in the number of persons employed in the shift. Under such a contingency, it may be considered that the employer has effected a reduction in the posts occupied by the persons whose services have been terminated, in which case it will be an illegal change unless notice has been given under S.42(1) as contemplated by S.46(2) of the Act. That is, for instance if twenty persons occupying twenty posts are necessary to work a shift and if five persons are sent out, that will amount to a reduction office posts, in consequence of which the work load on the remaining fifteen persons may be more. In these circumstances the Act provides for giving a notice of change and under S. 42(1) copies of such notice have to be given, apart from the representative of employees, to the Chief Conciliator and other officers mentioned therein. That will be a case of reduction of posts. But when the working of the entire shift is stopped there is no question of a reduction in the number of persons employed in a shift. On the other hand it is a case of termination of employment of all the persons employed in that shift which has been stopped. Such a case will not attract item No. I of Schedule II. To the employees whose services have been so terminated as the consequence of the closure of the entire shift, though other remedies are available to them in law, they cannot invoke item No. I of Schedule II. 28. We may also refer briefly to the facts of the case reported in Chaganlal Textile Mills Private Ltd. v. Chalisgaon Girni Kamgar Union, A.I.R. 1959 S.C. 722. On July 9, 1957 the company therein gave notice that the working of the second shift in their mill would be discontinued after one month. On August 9, 1957 the second shift was actually closed in terms of the notice. Fourteen employees, who were not workmen in the second shift but whose services were necessary to make all arrangements ready for the second shift to start working, were served with the notice on September 1, 1957 that their services were terminated. They were paid retrenchment compensation and other dues according to law. On November 9, 1957 the company gave a notice called "notice of change" that it wished to abolish 27 posts including the posts held by the 14 employees, whose services were terminated by the notice dated November 1, 1957. Even under those circumstances this court held that the notice given on November 1, 1957 terminating the services of 14 employees was only by way of retrenchment and was legal. It was further emphasized that as the said notice was legal, it did not cease to be so because within eight days a notice of change was also given. In the case before us it is not contended that the three clerks to whom notice had been given on January 7, 1958 were not given proper notice and that their dues have not been paid. Nor is it contended that after the admitted closure of the third shift with effect from December 8, 1957 the services of these three clerks did not become surplus to the appellant. We are satisfied that the notice dated January 7, 1958 is only a notice of retrenchment of surplus staff. By that notice the appellant has not effected any reduction in posts so as to attract item No. I of Schedule II, read with Ss.42(1) and 46(2) of the Act. If that is so, it follows that by terminating the services of the three clerks, the appellant has not made any illegal change within the meaning of S.46 of the Act.
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### Explanation:
A.I.R. 1959 S.C. 722. After an analysis of the contents of items 3 and 10 of Schedule I and item I of Schedule II, it has been held that item I relates only to posts and not to the personnel occupying the posts. Dealing with item No. I of Schedule II this Court observes as follows :"Furthermore, the language of item No. I of Schedule I clearly refers to a reduction in posts. It deals with the reduction not of persons employed but with the number of persons employed. Therefore it clearly contemplates posts. Again this item also refers to the number of persons to be employed. That of course has nothing to do with the retrenchment of persons actually employed. Again, when a notice of change in respect of item No. I of Schedule II is to be given, it is not to be given to any employee but to the representative of the employees which would include a union of employees. It could hardly have been intended that when employees were to be retrenched they would not be given any notice."25. From the above observations, it is clear that unless there is a reduction in posts, item I to Schedule II will have no application and in consequence there is no necessity to give a notice of change under S.46(2) read with S.42(1) of the Act. In the light of the above principles, if we examine the facts of the case before us, it is clear that on the closure of the third shift what the employer did was to retrench the employees working in that shift as they were found to be surplus in the establishment. Therefore, it was a case of reduction of persons employed and not one of reduction of the number of persons employed. Hence it is not a case or reduction of posts26. The matter can be considered from another point of view. Item No. I of Schedule II leaving out the portions which are not necessary for the present case refers to :"reduction intended to be of permanent or semi-permanent character in the number of persons to be employed in a shift."27. If read in that manner it is clear that the shift is not abolished but is working and the employer effects a reduction in the number of persons employed in the shift. Under such a contingency, it may be considered that the employer has effected a reduction in the posts occupied by the persons whose services have been terminated, in which case it will be an illegal change unless notice has been given under S.42(1) as contemplated by S.46(2) of the Act. That is, for instance if twenty persons occupying twenty posts are necessary to work a shift and if five persons are sent out, that will amount to a reduction office posts, in consequence of which the work load on the remaining fifteen persons may be more. In these circumstances the Act provides for giving a notice of change and under S. 42(1) copies of such notice have to be given, apart from the representative of employees, to the Chief Conciliator and other officers mentioned therein. That will be a case of reduction of posts. But when the working of the entire shift is stopped there is no question of a reduction in the number of persons employed in a shift. On the other hand it is a case of termination of employment of all the persons employed in that shift which has been stopped. Such a case will not attract item No. I of Schedule II. To the employees whose services have been so terminated as the consequence of the closure of the entire shift, though other remedies are available to them in law, they cannot invoke item No. I of Schedule II28. We may also refer briefly to the facts of the case reported in Chaganlal Textile Mills Private Ltd. v. Chalisgaon Girni Kamgar Union, A.I.R. 1959 S.C. 722. On July 9, 1957 the company therein gave notice that the working of the second shift in their mill would be discontinued after one month. On August 9, 1957 the second shift was actually closed in terms of the notice. Fourteen employees, who were not workmen in the second shift but whose services were necessary to make all arrangements ready for the second shift to start working, were served with the notice on September 1, 1957 that their services were terminated. They were paid retrenchment compensation and other dues according to law. On November 9, 1957 the company gave a notice called "notice of change" that it wished to abolish 27 posts including the posts held by the 14 employees, whose services were terminated by the notice dated November 1, 1957. Even under those circumstances this court held that the notice given on November 1, 1957 terminating the services of 14 employees was only by way of retrenchment and was legal. It was further emphasized that as the said notice was legal, it did not cease to be so because within eight days a notice of change was also given. In the case before us it is not contended that the three clerks to whom notice had been given on January 7, 1958 were not given proper notice and that their dues have not been paid. Nor is it contended that after the admitted closure of the third shift with effect from December 8, 1957 the services of these three clerks did not become surplus to the appellant. We are satisfied that the notice dated January 7, 1958 is only a notice of retrenchment of surplus staff. By that notice the appellant has not effected any reduction in posts so as to attract item No. I of Schedule II, read with Ss.42(1) and 46(2) of the Act. If that is so, it follows that by terminating the services of the three clerks, the appellant has not made any illegal change within the meaning of S.46 of the Act.
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M/S Pleasantime Products Etc Vs. Commr.Of Central Excise,Mumbai-1 Etc | chance or skill and it embraces every contrivance which has for its object sport, recreation or amusement. These are the various dictionary meanings of the word "game". Applying the dictionary meaning, we are of the view that "Scrabble" is a board game. It is not a puzzle. In the circumstances, it falls under Heading 95.04 and not under sub-heading 9503.00 of the CETA. 19. In the alternative, it is the case of the assessee that they are also selling what is called as "Junior Scrabble" which is an educational toy which falls in sub-heading 9503.00 of the CETA under the expression "Other Toys". It is submitted that "Junior Scrabble" has an element of playfulness and recreation. It is submitted that it is not a process but an article a child can play and develop his word power with the scrabble. It is submitted that "Junior Scrabble" is a pictorial dictionary and in it every child has to put the character and arch after identifying it. We find no merit in this contention. At the outset, it may be stated that according to the pleadings "Scrabble" is a toy in the nature of a puzzle. This plea indicates that even according to the appellant it is a "toy puzzle" and consequently it can only fall in the category of "puzzles of all kinds". However, as stated above, "Scrabble" (a branded word game) is not a puzzle as in "Scrabble" there is no fixed outcome, there is no clue as in the case of a puzzle and there is an element of skill and chance. 20. According to "The Concise Oxford English Dictionary, Tenth Edition", a "toy" is an object for a child to play with, typically a model or miniature, replica of something. The gadget or a machine providing amusement is a toy. In 1914 even a car was a toy for a rich man. According to Strouds Judicial Dictionary, Fifth Edition, construction kits for making model are "toys and games". According to Encyclopedia Americana originally a "toy" was made for adults rather than children, however, by 19th century the word came to denote a childs play-thing. According to Encyclopedia Americana toys are tools of the human child, training him in physical skills, developing his imagination and stimulating his thinking. Predominantly, it is a play-thing. Toys imitate in miniature the world familiar to children. According to Encyclopedia Americana, "educational toys" includes kits for building structures such as bridges and geodesic domes. Miniature railways on tracks are educational toys. However, with the change in educational methods in the 20th century the pattern of toys has undergone a change. Advance thinking in child welfare has influenced the shape of toys and special standards of safety and hygiene are enforced today. Kindergarten methods have influenced the pattern of toys and introduced building blocks and constructor sets, colour mosaics and educational jigsaws into the definition of the expression "educational toys". However, in 20th century also soft toys remain popular like "teddy bear". In 20th century vinyl plastic and foam rubber has revolutionized the toy industry and has communal toys - climbing frames, splash pools and sand trays. 21. Thus, going by the dictionary meanings of the word "educational toy" one finds that "educational toys" remain even today tools of amusement. They remain an object for a child to play with. One needs to apply the predominant test in such cases. Applying these tests, we are of the view that even a "Junior Scrabble" will not fall in the category of "educational toys". As stated earlier, the two main elements of "Scrabble" are - chance and skill. These elements are absent in a toy. Hence even a "Junior Scrabble" is not an educational toy. It is a game. It remains a board game and in the context of the placement of the entries in Chapter 95 which we have discussed above, in our view, even "Junior Scrabble" will come under Chapter Heading 95.04 of the CETA. 22. Now, coming to the question of extended period of limitation, it is the case of the assessee that they bonafidely believed that "Scrabble" is a toy in the nature of a puzzle and, therefore, it was classifiable under sub-heading 9503.00 of the CETA. According to the assessee, the longer period of limitation was not invocable under the proviso to Section 11A(1) of the 1944 Act as the assessee had stated in all their annual declarations that they are manufacturing toys and puzzles classifiable under Heading 95.04 and sub-heading 9503.90 of the CETA; particularly, when in their declarations they had declared that they were manufacturing toys and puzzles which carried the brand name of their licensors M/s. J.W. Spears & Sons Ltd., U.K., and since "Scrabble" was a product of M/s. J.W. Spears & Sons Ltd., U.K., it cannot be said that they had deliberately suppressed the fact of manufacture of "Scrabble". We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act. | 0[ds]14. Hence, in our view, "Scrabble" will not fall in the category or class mentioned in sub-heading 9503.00, namely, "puzzles of all kinds"We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act | 0 | 4,113 | 252 | ### 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:
chance or skill and it embraces every contrivance which has for its object sport, recreation or amusement. These are the various dictionary meanings of the word "game". Applying the dictionary meaning, we are of the view that "Scrabble" is a board game. It is not a puzzle. In the circumstances, it falls under Heading 95.04 and not under sub-heading 9503.00 of the CETA. 19. In the alternative, it is the case of the assessee that they are also selling what is called as "Junior Scrabble" which is an educational toy which falls in sub-heading 9503.00 of the CETA under the expression "Other Toys". It is submitted that "Junior Scrabble" has an element of playfulness and recreation. It is submitted that it is not a process but an article a child can play and develop his word power with the scrabble. It is submitted that "Junior Scrabble" is a pictorial dictionary and in it every child has to put the character and arch after identifying it. We find no merit in this contention. At the outset, it may be stated that according to the pleadings "Scrabble" is a toy in the nature of a puzzle. This plea indicates that even according to the appellant it is a "toy puzzle" and consequently it can only fall in the category of "puzzles of all kinds". However, as stated above, "Scrabble" (a branded word game) is not a puzzle as in "Scrabble" there is no fixed outcome, there is no clue as in the case of a puzzle and there is an element of skill and chance. 20. According to "The Concise Oxford English Dictionary, Tenth Edition", a "toy" is an object for a child to play with, typically a model or miniature, replica of something. The gadget or a machine providing amusement is a toy. In 1914 even a car was a toy for a rich man. According to Strouds Judicial Dictionary, Fifth Edition, construction kits for making model are "toys and games". According to Encyclopedia Americana originally a "toy" was made for adults rather than children, however, by 19th century the word came to denote a childs play-thing. According to Encyclopedia Americana toys are tools of the human child, training him in physical skills, developing his imagination and stimulating his thinking. Predominantly, it is a play-thing. Toys imitate in miniature the world familiar to children. According to Encyclopedia Americana, "educational toys" includes kits for building structures such as bridges and geodesic domes. Miniature railways on tracks are educational toys. However, with the change in educational methods in the 20th century the pattern of toys has undergone a change. Advance thinking in child welfare has influenced the shape of toys and special standards of safety and hygiene are enforced today. Kindergarten methods have influenced the pattern of toys and introduced building blocks and constructor sets, colour mosaics and educational jigsaws into the definition of the expression "educational toys". However, in 20th century also soft toys remain popular like "teddy bear". In 20th century vinyl plastic and foam rubber has revolutionized the toy industry and has communal toys - climbing frames, splash pools and sand trays. 21. Thus, going by the dictionary meanings of the word "educational toy" one finds that "educational toys" remain even today tools of amusement. They remain an object for a child to play with. One needs to apply the predominant test in such cases. Applying these tests, we are of the view that even a "Junior Scrabble" will not fall in the category of "educational toys". As stated earlier, the two main elements of "Scrabble" are - chance and skill. These elements are absent in a toy. Hence even a "Junior Scrabble" is not an educational toy. It is a game. It remains a board game and in the context of the placement of the entries in Chapter 95 which we have discussed above, in our view, even "Junior Scrabble" will come under Chapter Heading 95.04 of the CETA. 22. Now, coming to the question of extended period of limitation, it is the case of the assessee that they bonafidely believed that "Scrabble" is a toy in the nature of a puzzle and, therefore, it was classifiable under sub-heading 9503.00 of the CETA. According to the assessee, the longer period of limitation was not invocable under the proviso to Section 11A(1) of the 1944 Act as the assessee had stated in all their annual declarations that they are manufacturing toys and puzzles classifiable under Heading 95.04 and sub-heading 9503.90 of the CETA; particularly, when in their declarations they had declared that they were manufacturing toys and puzzles which carried the brand name of their licensors M/s. J.W. Spears & Sons Ltd., U.K., and since "Scrabble" was a product of M/s. J.W. Spears & Sons Ltd., U.K., it cannot be said that they had deliberately suppressed the fact of manufacture of "Scrabble". We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act.
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### Explanation:
14. Hence, in our view, "Scrabble" will not fall in the category or class mentioned in sub-heading 9503.00, namely, "puzzles of all kinds"We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act
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Essar Bulk Terminal Limited & Another Vs. State of Gujarat & Others | payable.In furtherance to the above, the following points may please be seen:(1)- (3) xxx xxx xxx(4) ESSAR has submitted details vide letter dated 7th April, 2015 of various proposals to GMB for development of waterfront and back-up area from time to time. GMB as a regulatory authority scrutinizes every proposal and submits to Govt. for necessary approval. It is to be noted that GMB granted NOC for dumping dredge material in mudflat area at Magdalla to ESSAR vide letter dated 14th June, 2007 (Annexure 5) with a condition that the ownership of reclaimed land shall vest with GMB/GOG (Condition No.7) and ESSAR shall not claim reimbursement for any expenditure, incurred for this reclamation (Condition No 8).”21. A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in the GMB’s affidavit filed in the High Court, it is stated that only 30% of the total capacity of cargo sought to be projected by the Appellants from 2011 onwards was, in fact, being handled by the Appellants. Also, it was noted that the reclaimed land will be of the ownership of either the Government or the GMB, and, that it is beneficial to the company, as otherwise the dredged material would have to be dumped in the sea which would have been very expensive. However, Shri Joshi referred us to a statement, made in a rejoinder affidavit by the Appellants in the High Court, to the effect that the cost of dumping dredged material to reclaim land was at least twice as much as the cost of dumping the dredged material in the sea. This bald averment made in an affidavit, without any supporting material, cannot be accepted at its face value. The answer to objection 3 is again of great importance, in that the GMB was alive to the fact that Essar is really attempting to convert its captive jetty into a commercial port, without entering into any bidding process, contrary to the Gujarat Infrastructure Development Act. Further, in answer to objection 8, the GMB states that the jetty is 1598 meters long with the further 1100 meters which the Government has approved for a capacity of 25 MMTPA, against which Essar has handled only 10 million metric tonnes of cargo in the year 2014-15.22. At this point it is also important to note that the GMB’s affidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14 meters’ depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if the Appellants’ plea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect the Appellants’ rights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further the Appellants’ case in any way.23. We now come to the Appellants’ argument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shri Salve’s plea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take the Appellants’ case any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shri Joshi’s plea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commercial port’s limits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have no ‘right’ to private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect any ‘right’ of the Appellants to private property. | 0[ds]15. By their letter dated 15th October, 2008, the Appellants asked the GMB to allow them to dredge the channel from 8 meters depth to 10 meters depth to accommodate capesize vessels of 105,000 DWT. Since material dredged from the channel would have to be dumped, an additional area of 316 hectares, towards the south of the mangroves, to dump the material and reclaim the said area was applied for. No such permission was granted by the GMB to go from a depth of 8 meters to 10 meters or to reclaim any area to the south of the mangroves. Shri Mihir Joshi, however, pointed out a completion certificate dated 11th February, 2010, in which it was mentioned that the width and depth of the channel is being increased to 300 meters and 10 meters below CD respectively inHowever, this would clearly not amount to permission for the same, as all that was stated in the completion certificate was a reference to a deep water berth of 8 meters depth below CD, the 10 meters depth being something which may be increased in future.16.Despite this, what is clear from the record is that the Appellants appear to have actually dredged the channel to a depth of 14 meters and appear to have reclaimed an area of 164 hectares plus 170 hectares to the south of the mangroves, without any permission at all. When this was pointed out to Shri Mihir Joshi, the answer given was that when permission is granted under Section 35(1) of the Gujarat Maritime Board Act, a letter granting such permission specifically says that it is permission that is granted under Section 35(1) and for this purpose, a letter dated 2nd August, 2008 was referred to. According to him, therefore, the letter dated 14th June, 2007, which referred only to an NOC for reclamation, could not be given the status of permission under Section 35(1). According to the learned counsel, therefore, if Section 35(1) were to be read with Section 35(2), it would be clear that permission for reclamation would only be necessary if a private asset were to be created in the hands of a private person. However, it is clear that the asset to be created belonged only to the Government of Gujarat and it was for the GMB to grant permission to the Appellants to use the same.We are afraid that it is difficult for us to accept this line of argument. Section 35(1) is couched in negative language and does not refer to private rights being created. Section 35(2) cannot be read so as to throw light on Section 35(1), as under Section 35(2), the GMB is only given a discretionary power to require a person, who has acted in contravention of Section 35(1), to remove the illegal erection. The wide language of Section 35(1) cannot be whittled down by Section 35(2) in the manner argued by Shri Joshi, as the GMB may or may not utilise the discretionary power granted to it under Section 35(2). The plain language of Section 35(1) cannot be curtailed by reading by inference, into(2), the fact that the GMB may, by notice, require a person to remove an erection, only when it has been made without previous permission, so as to create a private asset in the hands of a private person. The wide language of Section 35(1) makes it clear that any reclamation within the limits of the GMB cannot be carried out except with the previous permission in writing of the GMB. It is clear, therefore, that dredging to a depth of below 8 meters and reclamation of any area to the south of the mangroves was done by the Appellants in the teeth of Section 35(1) of the Gujarat Maritime Board Act.17.Mr. Sibal laid great stress on the letter dated 15th November, 2012 to show that, in point of fact, what the Appellants were really angling for was to conduct commercial operations beyond the captive requirements of the Essar Steel plant at Hazira.This letter, while asking for an addition of 3700 meters in addition to the existing 1100 meters waterfront, also went on to speak of developing a 700 meters berth, along with the GMB, for handling commercial cargo. Apart from this, Essar planned to build a world class container terminal and a dry dock, which would serve the shipping industry generally. It also proposed to reclaim a further 334 hectares land on the southern side with the additional dredged material. A perusal of this letter would leave no doubt about the fact that despite Essarproduction being at much less than what was projected, thecontinued demands would show that the real motive was to go beyond a captive jetty and to develop a commercial port which, as we have seen, cannot be done without a global tender under the Gujarat Infrastructure Development Act.18. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated not to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shricontention that any legitimate expectation could be based on any of the aforesaid expired MOUs. The High Court is correct in its conclusion that no such expectation could possibly have arisen out of the aforesaid MOUs or the correspondence between the Appellants and the GMB referred to.19. It is also important to note from the correspondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would not only belong to the Government of Gujarat, but also that the GMB could utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own cost, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a consequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth could be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB. In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is constructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the cost, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for theown use, thanks to large amounts being spent, is contrary to the correspondence by the Appellants themselves.A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in theAt this point it is also important to note that theaffidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if theplea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect therights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further thecase in any way.23. We now come to theargument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shriplea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take thecase any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shriplea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commerciallimits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have noto private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect anyof the Appellants to private property. | 0 | 8,697 | 2,026 | ### 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:
payable.In furtherance to the above, the following points may please be seen:(1)- (3) xxx xxx xxx(4) ESSAR has submitted details vide letter dated 7th April, 2015 of various proposals to GMB for development of waterfront and back-up area from time to time. GMB as a regulatory authority scrutinizes every proposal and submits to Govt. for necessary approval. It is to be noted that GMB granted NOC for dumping dredge material in mudflat area at Magdalla to ESSAR vide letter dated 14th June, 2007 (Annexure 5) with a condition that the ownership of reclaimed land shall vest with GMB/GOG (Condition No.7) and ESSAR shall not claim reimbursement for any expenditure, incurred for this reclamation (Condition No 8).”21. A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in the GMB’s affidavit filed in the High Court, it is stated that only 30% of the total capacity of cargo sought to be projected by the Appellants from 2011 onwards was, in fact, being handled by the Appellants. Also, it was noted that the reclaimed land will be of the ownership of either the Government or the GMB, and, that it is beneficial to the company, as otherwise the dredged material would have to be dumped in the sea which would have been very expensive. However, Shri Joshi referred us to a statement, made in a rejoinder affidavit by the Appellants in the High Court, to the effect that the cost of dumping dredged material to reclaim land was at least twice as much as the cost of dumping the dredged material in the sea. This bald averment made in an affidavit, without any supporting material, cannot be accepted at its face value. The answer to objection 3 is again of great importance, in that the GMB was alive to the fact that Essar is really attempting to convert its captive jetty into a commercial port, without entering into any bidding process, contrary to the Gujarat Infrastructure Development Act. Further, in answer to objection 8, the GMB states that the jetty is 1598 meters long with the further 1100 meters which the Government has approved for a capacity of 25 MMTPA, against which Essar has handled only 10 million metric tonnes of cargo in the year 2014-15.22. At this point it is also important to note that the GMB’s affidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14 meters’ depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if the Appellants’ plea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect the Appellants’ rights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further the Appellants’ case in any way.23. We now come to the Appellants’ argument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shri Salve’s plea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take the Appellants’ case any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shri Joshi’s plea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commercial port’s limits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have no ‘right’ to private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect any ‘right’ of the Appellants to private property.
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tender under the Gujarat Infrastructure Development Act.18. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated not to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shricontention that any legitimate expectation could be based on any of the aforesaid expired MOUs. The High Court is correct in its conclusion that no such expectation could possibly have arisen out of the aforesaid MOUs or the correspondence between the Appellants and the GMB referred to.19. It is also important to note from the correspondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would not only belong to the Government of Gujarat, but also that the GMB could utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own cost, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a consequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth could be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB. In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is constructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the cost, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for theown use, thanks to large amounts being spent, is contrary to the correspondence by the Appellants themselves.A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in theAt this point it is also important to note that theaffidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if theplea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect therights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further thecase in any way.23. We now come to theargument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shriplea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take thecase any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shriplea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commerciallimits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have noto private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect anyof the Appellants to private property.
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The State of Jharkhand and Ors Vs. Brahmputra Metallics Ltd., Ranchi and Anr | a situation. Rather, the petitioner has come before this Court due to arbitrariness in State action which led to the non-fulfillment of their legitimate expectations. (iii) The defence of unjust enrichment 49. Nor is the court inclined to accept the plea of unjust enrichment - the High Court has not ordered a refund at all since the duty has been paid. The respondent cannot be deprived of an adjustment of the excess duty paid. Further, the States submission that there was no pleading by the respondent in the High Court on whether the amount being claimed as rebate/deduction had been passed on by the respondent to its customers is factually incorrect. In the writ petition filed before the High Court, the respondent specifically asserted that the burden of differential amount of electricity duty, realized by the State from the respondent herein, was not passed by the latter to its customers, either directly or indirectly or in any other manner. The relevant excerpt of the pleading in the respondents writ petition reads thus: 41. That, at this stage, it is most humbly stated and submitted that if the amount of 50% of the electricity duty is refunded to the Petitioner, the same would not lead to unjust enrichment in the hands of the Petitioner as the Petitioner has not passed on the burden of differential amount of electricity duty, realized by Respondent-State from the Petitioner, to its customers either directly or indirectly or in any other manner. 42. That it is most humbly stated and submitted that for the period in question 100% of electricity duty has been realized from the Petitioner by Respondent-State of Jharkhand and, thus, extra 50% of the electricity duty has been borne by the Petitioner out of the own pocket and the burden of the same cannot be passed by the Petitioner to its customers. 43. That it is most humbly stated and submitted that the Petitioner is a manufacturer of Sponge Iron and M.S. Billet and the price of the said commodity is market driven and is controlled by the market. The amount of electricity duty paid by the Petitioner was out of its own pocket affecting the gross profit of the Petitioner on sale of its final product. It is categorically reiterated herein that burden of the amount of electricity has not been passed on by the Petitioner to its customers. As regards the petitioners reliance on the nine judge Bench decision of this Court in Mafatlal Industries (supra), we would like to advert to the holding in the majority opinion of Justice B P Jeevan Reddy, speaking for himself and four other learned judges, in the following terms: 108(iii). A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the Petitioner/Plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. In the present case, as we have previously held, the present respondent did not collect the electricity duty from both ends, to deploy the above phrasing. As a result, this doctrine has no application to the facts of the case at hand. 50. In Indian Council for Enviro-Legal Action vs. Union of India, (2011) 8 SCC 161 a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, outlined the ingredients of unjust enrichment in the following terms: 152. Unjust enrichment has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. Applying this definition to the facts of the case at hand, the doctrine of unjust enrichment could have been attracted if the respondent had passed on the electricity duty to its customers and then retained the refund occasioned by the 50 per cent rebate in its own pocket. This is not demonstrated to be the factual position and hence, the respondent cannot be denied relief on the application of the doctrine. I. Conclusion | 1[ds]21. The alacrity expected by the Industrial Policy 2012 of the State of Jharkhand did not find a resonance in its administrative apparatus. The High Court has justifiably referred to this as a case of bureaucratic lethargy. As a matter of first principle, there can be no gainsaying the fact that when a statute, such as the Bihar Act 1948, empowers the state to grant an exemption from its provisions, the State has the discretion to determine the date from which and the period over which the exemption will operate. An individual or entity cannot compel the State to issue a notification providing for an exemption or to insist upon the terms on which the government does so. Whether an exemption should be issued and if so, the terms for the exemption, have to be determined by the State. But this case does not rest on that principle nor did the claim of the respondent require the High Court to make a departure from it. The Industrial Policy 2012 contained a representation that a rebate/deduction would be granted. It held out a representation that a notification would be issued in a month. These were solemn commitments made by the State of Jharkhand. What remained was their implementation by issuing a notification, which was to be done within one month. The State government evidently intended to implement and act in pursuance of its commitment. For, ultimately, it did issue a notification. But it did so on 8 January 2015 - after a period of a month envisaged under the Industrial Policy 2012 had dragged on for nearly three years.22. It is time for the State government to take notice of the observations of the High Court in regard to administrative lethargy. If the object of formulating the industrial policy is to encourage investment, employment and growth, the administrative lethargy of the State apparatus is clearly a factor which will discourage entrepreneurship. The policy document held out a solemn representation. It contemplated the grant of a rebate/deduction from the payment of electricity duty not only to new units but to existing units as well who had or would set up captive power plants. The State, in the present case, held out inter alia a solemn representation in terms of Clauses 32.10 and 35.7(b) of the entitlement of the exemption for a period of five years from the date of production. Besides this, it also contemplated in Clause 38(b) that a follow-up exemption notification would be issued within one month. That period of one month stretched on interminably with the result that the purpose and object of granting the exemption would virtually stand defeated. The net result was that when belatedly, the State government issued a notification under Section 9 of Bihar Act 1948 on 8 January 2015, it was prospective. As a consequence, by the time that the exemption notification was issued, a large part of the term for which the exemption was to operate in terms of the Industrial Policy 2012 had come to an end.23. The State government was evidently inclined to grant the exemption. This is not a case where due to an overarching requirement of public interest, the State government decided to override the representation which was contained in the Industrial Policy 2012. To the contrary, it sought to implement the representation albeit in fits and starts. Firstly, there was a delay of three years in the issuance of the notification. Secondly, by making the notification prospective, it deprived units such as the respondent of the full benefit of the exemption which was originally envisaged in terms of the Industrial Policy 2012.24. In this backdrop, the High Court has, with justification, adverted to two decisions of this Court. In Kalyanpur Cement (supra), an industrial policy had been notified in 1995 in the State of Bihar. The policy contained a provision for monitoring and reviewing and envisaged that all departments and organizations would issue a follow-up notification to give effect to the policy within one month. This was similar to clause 38(b) of the policy in the present case. No notification was issued by the State of Bihar to give effect to the industrial policy, which lapsed on 31 August 2000. The claim to sales tax exemption by the unit was rejected by the State government on the ground that it had decided not to grant an incentive to a sick industrial unit. A follow-up notification was issued during the pendency of the case before this Court. In the backdrop of these facts, this Court speaking through Justice S. S. Nijjar, observed:85. Even if we are to accept the submissions...that the provisions contained in Clause 24 were mandatory, the time of one month for issuing the notification could only have been extended for a reasonable period. It is inconceivable that it could have taken the Government three years to issue the follow-up notification. We are of the considered opinion that failure of the appellants to issue the necessary notification within a reasonable period of the enforcement of the Industrial Policy, 1995 has rendered the decisions dated 6-1-2001 and 5-3-2001 wholly arbitrary. The appellant cannot be permitted to rely on its own lapses in implementing its Policy to defeat the just and valid claim of the Company. For the same reason we are unable to accept the submissions of the learned Senior Counsel for the appellant that no relief can be granted to the Company as the Policy has lapsed on 31-8-2000. Accepting such a submission would be to put a premium and accord a justification to the wholly arbitrary action of the appellant, in not issuing the notification in accordance with the provisions contained in Clause 24 of the Industrial Policy, 1995.25. In the decision in Manuelsons Hotels Private Limited vs. State of Kerala (supra), speaking through Justice Rohinton F Nariman, the Court had to construe a notification dated 11 July 1986 of the Government of Kerala enabling those engaged in tourism promotional activities to become automatically eligible for concessions/ incentives as provided to the industrial sector from time to time. An amendment to the Kerala Building Tax Act 1975 was made with effect from 6 November 1990 giving an exemption as promised in 1986 and the amendment was deleted with effect from 1 March 1993. Relying on the earlier decision of this Court inter alia in Motilal Padampat (supra), this Court held:3... The non-exercise of such discretionary power is clearly vitiated on account of the application of the doctrine of promissory estoppel in terms of this Courts judgments in Motilal Padampat [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641 ] and Nestle [State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465 ]. This is for the reason that non-exercise of such power is itself an arbitrary act which is vitiated by non-application of mind to relevant facts, namely, the fact that a G.O. dated 11-7-1986 specifically provided for exemption from building tax if hotels were to be set up in the State of Kerala pursuant to the representation made in the said G.O. True, no mandamus could issue to the legislature to amend the Kerala Building Tax Act, 1975, for that would necessarily involve the judiciary in transgressing into a forbidden field under the constitutional scheme of separation of powers. However, on facts, we find that Section 3-A was, in fact, enacted by the Kerala Legislature by suitably amending the Kerala Building Tax Act, 1975 on 6-11-1990 in order to give effect to the representation made by the G.O. dated 11-7-1986. We find that the said provision continued on the statute book and was deleted only with effect from 1-3-1993. This would make it clear that from 6-11-1990 to 1-3-1993, the power to grant exemption from building tax was statutorily conferred by Section 3-A on the Government. And we have seen that the Statement of Objects and Reasons for introducing Section 3-A expressly states that the said section was introduced in order to fulfil one of the promises contained in the G.O. dated 11-7-1986. We find that the appellants, having relied on the said G.O. dated 11-7-1986, had, in fact, constructed a hotel building by 1991. It is clear, therefore, that the non-issuance of a notification under Section 3-A was an arbitrary act of the Government which must be remedied by application of the doctrine of promissory estoppel, as has been held by us hereinabove. The ministerial act of non-issue of the notification cannot possibly stand in the way of the appellants getting relief under the said doctrine for it would be unconscionable on the part of the Government to get away without fulfilling its promise.26. Before the High Court, the State of Jharkhand sought to sustain its action on the ground that though the follow-up notification under Section 9 was issued on 8 January 2015, no outer limit for the issuance of a notification was prescribed and there was no vested right on the part of the respondent to get the notification implemented from an earlier date or to obtain the benefit of the policy until it was implemented by a follow-up notification. The decision in Kalyanpur Cement (supra) was sought to be distinguished on the ground that in that case no follow-up notification had been issued at all until the policy lapsed. In sum and substance, the objection was that the writ petitioner - the respondent here - had no vested right to claim that a follow-up notification should be issued and that the doctrine of promissory estoppel would not, in the facts, apply.In National Buildings Construction Corporation vs. S. Raghunathan, (1998) 7 SCC 66. (National Buildings Construction Corpn.), a three Judge bench of this Court, speaking through Justice S. Saghir Ahmad, held that:18. The doctrine of legitimate expectation has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights. But claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.However, it is important to note that this observation was made by this Court while discussing the ambit of the doctrine of legitimate expectation under English Law, as it stood then. As we have discussed earlier, there was a substantial conflation or overlap between the doctrines of legitimate expectation and promissory estoppel even under English Law since the former was often invoked as being analogous to the latter. However, since then and since the judgment of this Court in National Buildings Construction Corporation (supra), the English Law in relation to the doctrine of legitimate expectation has evolved. More specifically, it has actively tried to separate the two doctrines and to situate the doctrine of legitimate expectations on a broader footing. In Regina (Reprotech (Pebsham) Ltd) vs. East Sussex County Council, [2003] 1 WLR 348. the House of Lords has held thus:33. In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into the public law of planning control, which binds everyone. (See also Dyson J in R vs. Leicester City Council, Ex p Powergen UK Ltd. [2000] JPL 629, 637.)34. There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power... But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individuals right to a home is accorded a high degree of protection (see Coughlans case, at pp 254-255) while ordinary property rights are in general far more limited by considerations of public interest: see R (Alconbury Developments Ltd) vs. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.35. It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd vs. Westminster (City) London Borough Council [1971] 1 QB 222, Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful.....It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.More recently, in NOIDA Entrepreneurs Assn. vs. NOIDA, (2011) 6 SCC 508 a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms:39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, in good faith means for legitimate reasons. It must be exercised bona fide for the purpose and for none other...]As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.43. Applying the abovementioned principles in the present case, we are unable to perceive any substance in the submission of the State which was urged in defense before the High Court. Not only did the State in the present case hold out a solemn representation, this representation was founded on its stated desire to encourage industrialization in the State. The policy document spelt out:(i) The nature of the incentives;(ii) The period during which the incentives would be available; and(iii) The time limit within which follow-up action would be taken by the State government through its departments for implementing the Industrial Policy 2012.44. The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State government did as a matter of fact, issue a statutory notification under Section 9 but by doing so prospectively with effect from 8 January 2015 it negated the nature of the representation which was held out in the Industrial Policy 2012. Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before this Court for the delay in issuing a notification. The pleadings are completely silent on the reasons for the delay on the part of the government and offer no justification for making the exemption prospective, contrary to the terms of the representation held out in the Industrial Policy 2012.45. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy 2012. Both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of state power. The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. This conception of state power has been recognized by this Court in a consistent line of decisions. As an illustration, we would like to extract this Courts observations in National Buildings Construction Cororation (supra):The Government and its departments, in administering the affairs of the country are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice.46. Therefore, it is clear that the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50 per cent rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14.47. We have not been impressed with the submission of the State on the technicalities of the respondent not having filed in its assessment returns, a claim for exemption from electricity duty. What is significant is that since no exemption notification had been issued under Section 9, a writ petition was initially filed before the High Court by Usha Martin Limited. As a result of the writ petition, an exemption notification was issued on 8 January 2015. Now it is correct that in the case of FYs 2012-13 and 2013-14, the orders of assessment were passed on 8 December 2015 and 16 December 2016, which was after the date of the exemption notification. However, the fact remains that so long as the clause in the exemption notification granting it prospective effect continued to hold the field, the assessing officer as a creature of the statute was bound to enforce the terms of the exemption and accordingly denied any exemption for a period prior to 8 January 2015. The only remedy which was available to the respondent, was to challenge the terms of the exemption notification which it did by instituting writ proceedings before the High Court under Article 226.In High Court of Judicature of Patna vs. Madan Mohan Prasad, (2011) 9 SCC 65 a two judge Bench of this Court, speaking through Justice J M Panchal, held thus:19. The contention advanced on behalf of the appellant that the writ petition was filed by Respondent 1 on 10-11-1990 i.e. seven years after he had superannuated from service, and therefore, the writ petition should have been dismissed on the ground of delay and laches, cannot be accepted. The impugned judgment nowhere shows that such a point was argued by the appellant before the High Court. No grievance is made in the memorandum of SLP that point regarding delay and laches was argued before the High Court but the same was not dealt with by the High Court when impugned judgment was delivered.This finds support in the judgment of this Court in Dayal Singh vs. Union of India, (2003) 2 SCC 593. where a three judge Bench, speaking through Justice S B Sinha, held thus:41. It was submitted that the respondents having filed a writ petition after a period of eight years, the same ought not to have been entertained. Primarily a question of delay and laches is a matter which is required to be considered by the writ court. Once the writ court has exercised its jurisdiction despite delay and laches on the part of the respondents, it is not for us at this stage to set aside the order of the High Court on that ground alone particularly when we find that the impugned judgment is legally sustainable.Mr Bharuka is also correct in submitting that the State cannot possibly contend that the result of the delay has led to it altering its position to its detriment. Nor is it a case where third parties may be affected as a consequence of a delay in instituting writ proceedings.This submission finds support in Hindustan Petroleum Corporation Ltd. vs. Dolly Das, (1999) 4 SCC 450 where a two judge Bench, speaking through Justice S Rajendra Babu, noted thus:8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief.In this view of the matter, we are not inclined to interfere with the judgment of the High Court on the ground of delay alone when the judgment is based on legally sustainable principles. The delay of the respondent in filing a writ petition by itself should not defeat the claim unless the position of the State has been so altered that it cannot be retracted on account of a lapse of time or the inaction of the writ petitioner. The State has not in the present case either pleaded or argued any hardship if the respondent were to be granted relief. Finally, the decisions in Bhailal Bhai (supra) and Suganmal (supra) related to a petitioner seeking a refund of an illegally collected tax. In the present case, we are not concerned with such a situation. Rather, the petitioner has come before this Court due to arbitrariness in State action which led to the non-fulfillment of their legitimate expectations.49. Nor is the court inclined to accept the plea of unjust enrichment - the High Court has not ordered a refund at all since the duty has been paid. The respondent cannot be deprived of an adjustment of the excess duty paid. Further, the States submission that there was no pleading by the respondent in the High Court on whether the amount being claimed as rebate/deduction had been passed on by the respondent to its customers is factually incorrect. In the writ petition filed before the High Court, the respondent specifically asserted that the burden of differential amount of electricity duty, realized by the State from the respondent herein, was not passed by the latter to its customers, either directly or indirectly or in any other manner. The relevant excerpt of the pleading in the respondents writ petition reads thus:41. That, at this stage, it is most humbly stated and submitted that if the amount of 50% of the electricity duty is refunded to the Petitioner, the same would not lead to unjust enrichment in the hands of the Petitioner as the Petitioner has not passed on the burden of differential amount of electricity duty, realized by Respondent-State from the Petitioner, to its customers either directly or indirectly or in any other manner.42. That it is most humbly stated and submitted that for the period in question 100% of electricity duty has been realized from the Petitioner by Respondent-State of Jharkhand and, thus, extra 50% of the electricity duty has been borne by the Petitioner out of the own pocket and the burden of the same cannot be passed by the Petitioner to its customers.43. That it is most humbly stated and submitted that the Petitioner is a manufacturer of Sponge Iron and M.S. Billet and the price of the said commodity is market driven and is controlled by the market. The amount of electricity duty paid by the Petitioner was out of its own pocket affecting the gross profit of the Petitioner on sale of its final product. It is categorically reiterated herein that burden of the amount of electricity has not been passed on by the Petitioner to its customers.As regards the petitioners reliance on the nine judge Bench decision of this Court in Mafatlal Industries (supra), we would like to advert to the holding in the majority opinion of Justice B P Jeevan Reddy, speaking for himself and four other learned judges, in the following terms:108(iii). A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the Petitioner/Plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person.In the present case, as we have previously held, the present respondent did not collect the electricity duty from both ends, to deploy the above phrasing. As a result, this doctrine has no application to the facts of the case at hand.50. In Indian Council for Enviro-Legal Action vs. Union of India, (2011) 8 SCC 161 a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, outlined the ingredients of unjust enrichment in the following terms:152. Unjust enrichment has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.Applying this definition to the facts of the case at hand, the doctrine of unjust enrichment could have been attracted if the respondent had passed on the electricity duty to its customers and then retained the refund occasioned by the 50 per cent rebate in its own pocket. This is not demonstrated to be the factual position and hence, the respondent cannot be denied relief on the application of the doctrine. | 1 | 14,052 | 5,521 | ### 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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a situation. Rather, the petitioner has come before this Court due to arbitrariness in State action which led to the non-fulfillment of their legitimate expectations. (iii) The defence of unjust enrichment 49. Nor is the court inclined to accept the plea of unjust enrichment - the High Court has not ordered a refund at all since the duty has been paid. The respondent cannot be deprived of an adjustment of the excess duty paid. Further, the States submission that there was no pleading by the respondent in the High Court on whether the amount being claimed as rebate/deduction had been passed on by the respondent to its customers is factually incorrect. In the writ petition filed before the High Court, the respondent specifically asserted that the burden of differential amount of electricity duty, realized by the State from the respondent herein, was not passed by the latter to its customers, either directly or indirectly or in any other manner. The relevant excerpt of the pleading in the respondents writ petition reads thus: 41. That, at this stage, it is most humbly stated and submitted that if the amount of 50% of the electricity duty is refunded to the Petitioner, the same would not lead to unjust enrichment in the hands of the Petitioner as the Petitioner has not passed on the burden of differential amount of electricity duty, realized by Respondent-State from the Petitioner, to its customers either directly or indirectly or in any other manner. 42. That it is most humbly stated and submitted that for the period in question 100% of electricity duty has been realized from the Petitioner by Respondent-State of Jharkhand and, thus, extra 50% of the electricity duty has been borne by the Petitioner out of the own pocket and the burden of the same cannot be passed by the Petitioner to its customers. 43. That it is most humbly stated and submitted that the Petitioner is a manufacturer of Sponge Iron and M.S. Billet and the price of the said commodity is market driven and is controlled by the market. The amount of electricity duty paid by the Petitioner was out of its own pocket affecting the gross profit of the Petitioner on sale of its final product. It is categorically reiterated herein that burden of the amount of electricity has not been passed on by the Petitioner to its customers. As regards the petitioners reliance on the nine judge Bench decision of this Court in Mafatlal Industries (supra), we would like to advert to the holding in the majority opinion of Justice B P Jeevan Reddy, speaking for himself and four other learned judges, in the following terms: 108(iii). A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the Petitioner/Plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. In the present case, as we have previously held, the present respondent did not collect the electricity duty from both ends, to deploy the above phrasing. As a result, this doctrine has no application to the facts of the case at hand. 50. In Indian Council for Enviro-Legal Action vs. Union of India, (2011) 8 SCC 161 a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, outlined the ingredients of unjust enrichment in the following terms: 152. Unjust enrichment has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. Applying this definition to the facts of the case at hand, the doctrine of unjust enrichment could have been attracted if the respondent had passed on the electricity duty to its customers and then retained the refund occasioned by the 50 per cent rebate in its own pocket. This is not demonstrated to be the factual position and hence, the respondent cannot be denied relief on the application of the doctrine. I. Conclusion
### Response:
1
### Explanation:
seeking a refund of an illegally collected tax. In the present case, we are not concerned with such a situation. Rather, the petitioner has come before this Court due to arbitrariness in State action which led to the non-fulfillment of their legitimate expectations.49. Nor is the court inclined to accept the plea of unjust enrichment - the High Court has not ordered a refund at all since the duty has been paid. The respondent cannot be deprived of an adjustment of the excess duty paid. Further, the States submission that there was no pleading by the respondent in the High Court on whether the amount being claimed as rebate/deduction had been passed on by the respondent to its customers is factually incorrect. In the writ petition filed before the High Court, the respondent specifically asserted that the burden of differential amount of electricity duty, realized by the State from the respondent herein, was not passed by the latter to its customers, either directly or indirectly or in any other manner. The relevant excerpt of the pleading in the respondents writ petition reads thus:41. That, at this stage, it is most humbly stated and submitted that if the amount of 50% of the electricity duty is refunded to the Petitioner, the same would not lead to unjust enrichment in the hands of the Petitioner as the Petitioner has not passed on the burden of differential amount of electricity duty, realized by Respondent-State from the Petitioner, to its customers either directly or indirectly or in any other manner.42. That it is most humbly stated and submitted that for the period in question 100% of electricity duty has been realized from the Petitioner by Respondent-State of Jharkhand and, thus, extra 50% of the electricity duty has been borne by the Petitioner out of the own pocket and the burden of the same cannot be passed by the Petitioner to its customers.43. That it is most humbly stated and submitted that the Petitioner is a manufacturer of Sponge Iron and M.S. Billet and the price of the said commodity is market driven and is controlled by the market. The amount of electricity duty paid by the Petitioner was out of its own pocket affecting the gross profit of the Petitioner on sale of its final product. It is categorically reiterated herein that burden of the amount of electricity has not been passed on by the Petitioner to its customers.As regards the petitioners reliance on the nine judge Bench decision of this Court in Mafatlal Industries (supra), we would like to advert to the holding in the majority opinion of Justice B P Jeevan Reddy, speaking for himself and four other learned judges, in the following terms:108(iii). A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the Petitioner/Plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person.In the present case, as we have previously held, the present respondent did not collect the electricity duty from both ends, to deploy the above phrasing. As a result, this doctrine has no application to the facts of the case at hand.50. In Indian Council for Enviro-Legal Action vs. Union of India, (2011) 8 SCC 161 a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, outlined the ingredients of unjust enrichment in the following terms:152. Unjust enrichment has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.Applying this definition to the facts of the case at hand, the doctrine of unjust enrichment could have been attracted if the respondent had passed on the electricity duty to its customers and then retained the refund occasioned by the 50 per cent rebate in its own pocket. This is not demonstrated to be the factual position and hence, the respondent cannot be denied relief on the application of the doctrine.
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Daya Shankar Vs. State of M.P | living with Ramkishore. The appellant was having enmity with deceased on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal, the co-accused pulled the legs of deceased and threw him on the ground. Ram Kishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted. Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention. 4. Learned counsel for the State submitted that the eye witnesses PWs 2 and 3 had described the act of each of the appellants and the role ascribed to the appellant was that he pulled the leg of the deceased as a result of which deceased fell in the field of Masur crop and thereafter he was assaulted by other accused persons. The appeal was dismissed accepting the stand of the State. 5. Learned counsel for the appellant re-iterated the stand taken before the High Court and submitted that Section 34 IPC has no application. 6. Learned counsel for the State on the other hand supported the judgment. 7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established. | 1[ds]7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established. | 1 | 1,261 | 654 | ### 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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living with Ramkishore. The appellant was having enmity with deceased on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal, the co-accused pulled the legs of deceased and threw him on the ground. Ram Kishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted. Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention. 4. Learned counsel for the State submitted that the eye witnesses PWs 2 and 3 had described the act of each of the appellants and the role ascribed to the appellant was that he pulled the leg of the deceased as a result of which deceased fell in the field of Masur crop and thereafter he was assaulted by other accused persons. The appeal was dismissed accepting the stand of the State. 5. Learned counsel for the appellant re-iterated the stand taken before the High Court and submitted that Section 34 IPC has no application. 6. Learned counsel for the State on the other hand supported the judgment. 7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established.
### Response:
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### Explanation:
7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established.
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Oriental Insurance Co. Ltd Vs. Prithvi Raj | to damage to any property of a third party and not damage to the property of the owner of the vehicle, i.e., the insured. Sub-section (2) stipulates the extent of liability and in the case of property of a third party the limit of liability is Rupees six thousand only. The proviso to that sub-section continues the liability fixed under the policy for four months or till the date of its actual expiry, whichever is earlier, Sub-section (3) next provides that the policy of insurance shall be of no effect unless and until the insurer has issued a certificate of insurance in the prescribed form. The next important provision which we may notice is Section 156 which sets out the effect of the certificate of insurance. It says that when the insurer issues the certificate of insurance, then even if the policy of insurance has not as yet been issued the insurer shall, as between himself and any other person except the insured be deemed to have issued to the insured a policy of insurance conforming in all respects with the description and particulars stated in the certificate. It is obvious on a plain reading of this provision that the legislature was anxious to protect third-party interest. Then comes Section 157 which we extracted earlier. This provision lays down that when the owner vehicle in relation whereto a certificate of insurance is issued transfers to another person the ownership of the motor vehicle, the certificate of insurance together with the policy described therein shall be deemed to have been transferred in favour of the new owner of the vehicle with effect from the date of transfer. Sub-section (2) requires the transferee to apply within fourteen days from the date of transfer to the insurer for making necessary changes in the certificate of insurance and the policy described therein in his favour. These are the relevant provisions of Chapter XI which have a bearing on the question of insurers liability in the present case.10. There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third-party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b)(i) which clearly refers to "damage to any property of a third party" and not damage to the property of the insured himself. And the limit of liability fixed for damage to property of a third party is Rupees six thousand only as pointed out earlier. That is why even the Claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third-party property and not the property of the insured."26. The restrictions relating to appeal in terms of Section 173 (2) does not apply to own damage cases.38. The inevitable conclusion therefore is that the decision in Swaran Singhs case (supra) has no application to own damage cases. The effect of fake license has to be considered in the light of what has been stated by this Court in New India Assurance Co., Shimla v. Kamla and Ors. (2001 (4) SCC 342 ). Once the license is a fake one the renewal cannot take away the effect of fake license. It was observed in Kamlas case (supra) as follows:"12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to "renew a driving licence issued under the provisions of this Act with effect from the date of its expiry". No Licensing Authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine".39. As noted above, the conceptual difference between third party right and own damage cases has to be kept in view. Initially, the burden is on the insurer to prove that the license was a fake one. Once it is established the natural consequences have to flow.” 9. The above aspects were highlighted recently in Laxmi Narain Dhut case (supra). 10. In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.11. It appears that pursuant to the orders dated 14.07.2005 passed by this Court, the entire amount awarded was deposited in this Court. Since, we have held that the appellant-Insurance Company has no liability, the amount deposited be returned to the appellant-Insurance Company with accrued interest, if any. | 1[ds]10. In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.11. It appears that pursuant to the orders dated 14.07.2005 passed by this Court, the entire amount awarded was deposited in this Court. Since, we have held that the appellant-Insurance Company has no liability, the amount deposited be returned to the appellant-Insurance Company with accrued interest, if any. | 1 | 5,109 | 187 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
to damage to any property of a third party and not damage to the property of the owner of the vehicle, i.e., the insured. Sub-section (2) stipulates the extent of liability and in the case of property of a third party the limit of liability is Rupees six thousand only. The proviso to that sub-section continues the liability fixed under the policy for four months or till the date of its actual expiry, whichever is earlier, Sub-section (3) next provides that the policy of insurance shall be of no effect unless and until the insurer has issued a certificate of insurance in the prescribed form. The next important provision which we may notice is Section 156 which sets out the effect of the certificate of insurance. It says that when the insurer issues the certificate of insurance, then even if the policy of insurance has not as yet been issued the insurer shall, as between himself and any other person except the insured be deemed to have issued to the insured a policy of insurance conforming in all respects with the description and particulars stated in the certificate. It is obvious on a plain reading of this provision that the legislature was anxious to protect third-party interest. Then comes Section 157 which we extracted earlier. This provision lays down that when the owner vehicle in relation whereto a certificate of insurance is issued transfers to another person the ownership of the motor vehicle, the certificate of insurance together with the policy described therein shall be deemed to have been transferred in favour of the new owner of the vehicle with effect from the date of transfer. Sub-section (2) requires the transferee to apply within fourteen days from the date of transfer to the insurer for making necessary changes in the certificate of insurance and the policy described therein in his favour. These are the relevant provisions of Chapter XI which have a bearing on the question of insurers liability in the present case.10. There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third-party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b)(i) which clearly refers to "damage to any property of a third party" and not damage to the property of the insured himself. And the limit of liability fixed for damage to property of a third party is Rupees six thousand only as pointed out earlier. That is why even the Claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third-party property and not the property of the insured."26. The restrictions relating to appeal in terms of Section 173 (2) does not apply to own damage cases.38. The inevitable conclusion therefore is that the decision in Swaran Singhs case (supra) has no application to own damage cases. The effect of fake license has to be considered in the light of what has been stated by this Court in New India Assurance Co., Shimla v. Kamla and Ors. (2001 (4) SCC 342 ). Once the license is a fake one the renewal cannot take away the effect of fake license. It was observed in Kamlas case (supra) as follows:"12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to "renew a driving licence issued under the provisions of this Act with effect from the date of its expiry". No Licensing Authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine".39. As noted above, the conceptual difference between third party right and own damage cases has to be kept in view. Initially, the burden is on the insurer to prove that the license was a fake one. Once it is established the natural consequences have to flow.” 9. The above aspects were highlighted recently in Laxmi Narain Dhut case (supra). 10. In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.11. It appears that pursuant to the orders dated 14.07.2005 passed by this Court, the entire amount awarded was deposited in this Court. Since, we have held that the appellant-Insurance Company has no liability, the amount deposited be returned to the appellant-Insurance Company with accrued interest, if any.
### Response:
1
### Explanation:
10. In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.11. It appears that pursuant to the orders dated 14.07.2005 passed by this Court, the entire amount awarded was deposited in this Court. Since, we have held that the appellant-Insurance Company has no liability, the amount deposited be returned to the appellant-Insurance Company with accrued interest, if any.
|
Dharam Singh Rathi Vs. Hari Singh M.L.A. & Ors | post office was not Smalkha Mandi. On the face of the address of given in the nomination papers there was the defect of incorrect mention of the name of the post office. The name of the District was also not given. It has come in the evidence of the respondent that there were other places of the names at Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan. Even ignoring the defects aforesaid the High Court has noticed on consideration of the evidence and specially of Jagan Nath himself that the postal address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him. There were several persons of the name of Jagan Nath in Smalkha Mandi, Smalkha village. Jagan Nath was serving at shop of a Sweet Meat Seller, Railway Road, Smalkhs Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate. Eventually Jagan Nath was impleaded as a respondent in the election petition. He filed a written statement and examined himself as R.W.5. His definite case was that until and unless some more details were given in his postal address no letter on that skeleton description as given in the nomination papers could be delivered to him by the postal authorities. Taking the totality of the circumstances the High court has rightly held that no postal address in effect was given on either of the nomination papers of Jagan Nath.4.A nomination paper has to be delivered to the Returning Officer by the candidate or his proposer in accordance with Section 33 (1) if the Act. The nomination paper must be completed in the prescribed form. The requirement of sub-section (4) is that the Returning Officer shall satisfy himself on the presentation of a nomination paper that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. In certain types of defects detected at the time of the presentation of the nomination paper the proviso to sub-section (4) empowers the Returning Officer to overlook such mistakes or to get them rectified as the case may be. Generally speaking the kinds of defects mentioned in the proviso would not be of a substantial character so as to justify the rejection of a nomination paper. There may, however, even amongst these types of defects be some such that necessitate their rectification and if not rectified that may make the nomination paper liable to be rejected. But the defect of non-supply of postal address is not covered by the proviso to sub-section (4) of Section 33 of the Act. It is a defect which falls for consideration at the time of the scrutiny of the nomination papers. If the defect is a substantial one then the nomination paper has got to be rejected. Sub-section (4) of Section 36 enjoins the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial character. But if it is of a substantial character then subsection (2) provides that the Returning Officer shall reject the nomination paper when "there has been a failure to comply with any of the provisions of Section 33 or Section 34." Reading Rule 4 of the Rules and Form 28 it would be noticed that non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of Section 33 (1). Hence we agree with the findings of the High Court that Jagan Naths nomination papers were not improperly rejected by the Returning Officer.5. The nomination paper of Prabha Ram suffered from more serious types of defects.The Returning Officer rejected the nomination of Prabha Ram on the grounds (1) that the name of the Constituency of the proposer was not given in the nomination paper; (2) that the numbers of electoral roll given in the nomination paper did not tally with the candidates number in the true copy of the electoral roll; (3) that at the name of a the proposer one more name was given and the entries in the electoral roll did not tally with the numbers mentioned by the proposer and the candidate in the nomination paper. Following the dictum of this Court in the case of N. T. Veluswami Thever v. G. Raja Nainar, AIR 1959 SC 422 the High Court has taken into consideration another defect, in that the thumb impression of one of the two proposers had not been authenticated in the manner required by law. Even ignoring grounds 2 and 3 forming the basis of the order of the Returning Officer rejecting the nomination paper of Prabha Ram as being possibly covered by the Proviso to Section 33 (4), the first detect pointed out by the Returning Officer was of a substantial character. It made it obligatory for him to reject the nomination paper. Over and above that defect the High Court has rightly noticed another fatal defect. Section 2 (i) of the Act says:"sign" in relation to a person who is unable to write his name means authenticate in such manner as, may be prescribed."The prescribed manner of authentication is to be found in Rule 2 (2) of the Rules. A thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the mark of that person. There was, therefore, a clear violation of this rule also. We see no reason to differ from the view of the High Court that the nomination paper of Prabha Ram was not improperly rejected by the Returning Officer. | 0[ds]3. We concur in the view of the High Court that filling up the column of postal address of the candidate in the nomination paper is necessary . The High Court has referred to several provisions in the Act and the Rules to point out the purpose of supplying the postal address. It appears that the name of the post office concerning Smalkha Mandi, Smalkha village, Model town etc., was Smalkha. The name of the post office was not Smalkha Mandi. On the face of the address of given in the nomination papers there was the defect of incorrect mention of the name of the post office. The name of the District was also not given. It has come in the evidence of the respondent that there were other places of the names at Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan. Even ignoring the defects aforesaid the High Court has noticed on consideration of the evidence and specially of Jagan Nath himself that the postal address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him. There were several persons of the name of Jagan Nath in Smalkha Mandi, Smalkha village. Jagan Nath was serving at shop of a Sweet Meat Seller, Railway Road, Smalkhs Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate. Eventually Jagan Nath was impleaded as a respondent in the election petition. He filed a written statement and examined himself as R.W.5. His definite case was that until and unless some more details were given in his postal address no letter on that skeleton description as given in the nomination papers could be delivered to him by the postal authorities. Taking the totality of the circumstances the High court has rightly held that no postal address in effect was given on either of the nomination papers of JaganRule 4 of the Rules and Form 28 it would be noticed that non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of Section 33 (1). Hence we agree with the findings of the High Court that Jagan Naths nomination papers were not improperly rejected by the Returning Officer.5. The nomination paper of Prabha Ram suffered from more serious types of defects.The Returning Officer rejected the nomination of Prabha Ram on the grounds (1) that the name of the Constituency of the proposer was not given in the nomination paper; (2) that the numbers of electoral roll given in the nomination paper did not tally with the candidates number in the true copy of the electoral roll; (3) that at the name of a the proposer one more name was given and the entries in the electoral roll did not tally with the numbers mentioned by the proposer and the candidate in the nomination paper. Following the dictum of this Court in the case of N. T. Veluswami Thever v. G. Raja Nainar, AIR 1959 SC 422 the High Court has taken into consideration another defect, in that the thumb impression of one of the two proposers had not been authenticated in the manner required by law. Even ignoring grounds 2 and 3 forming the basis of the order of the Returning Officer rejecting the nomination paper of Prabha Ram as being possibly covered by the Proviso to Section 33 (4), the first detect pointed out by the Returning Officer was of a substantial character. It made it obligatory for him to reject the nomination paper. Over and above that defect the High Court has rightly noticed another fatalprescribed manner of authentication is to be found in Rule 2 (2) of the Rules. A thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the mark of that person. There was, therefore, a clear violation of this rule also. We see no reason to differ from the view of the High Court that the nomination paper of Prabha Ram was not improperly rejected by the Returning Officer. | 0 | 1,609 | 791 | ### 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:
post office was not Smalkha Mandi. On the face of the address of given in the nomination papers there was the defect of incorrect mention of the name of the post office. The name of the District was also not given. It has come in the evidence of the respondent that there were other places of the names at Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan. Even ignoring the defects aforesaid the High Court has noticed on consideration of the evidence and specially of Jagan Nath himself that the postal address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him. There were several persons of the name of Jagan Nath in Smalkha Mandi, Smalkha village. Jagan Nath was serving at shop of a Sweet Meat Seller, Railway Road, Smalkhs Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate. Eventually Jagan Nath was impleaded as a respondent in the election petition. He filed a written statement and examined himself as R.W.5. His definite case was that until and unless some more details were given in his postal address no letter on that skeleton description as given in the nomination papers could be delivered to him by the postal authorities. Taking the totality of the circumstances the High court has rightly held that no postal address in effect was given on either of the nomination papers of Jagan Nath.4.A nomination paper has to be delivered to the Returning Officer by the candidate or his proposer in accordance with Section 33 (1) if the Act. The nomination paper must be completed in the prescribed form. The requirement of sub-section (4) is that the Returning Officer shall satisfy himself on the presentation of a nomination paper that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. In certain types of defects detected at the time of the presentation of the nomination paper the proviso to sub-section (4) empowers the Returning Officer to overlook such mistakes or to get them rectified as the case may be. Generally speaking the kinds of defects mentioned in the proviso would not be of a substantial character so as to justify the rejection of a nomination paper. There may, however, even amongst these types of defects be some such that necessitate their rectification and if not rectified that may make the nomination paper liable to be rejected. But the defect of non-supply of postal address is not covered by the proviso to sub-section (4) of Section 33 of the Act. It is a defect which falls for consideration at the time of the scrutiny of the nomination papers. If the defect is a substantial one then the nomination paper has got to be rejected. Sub-section (4) of Section 36 enjoins the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial character. But if it is of a substantial character then subsection (2) provides that the Returning Officer shall reject the nomination paper when "there has been a failure to comply with any of the provisions of Section 33 or Section 34." Reading Rule 4 of the Rules and Form 28 it would be noticed that non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of Section 33 (1). Hence we agree with the findings of the High Court that Jagan Naths nomination papers were not improperly rejected by the Returning Officer.5. The nomination paper of Prabha Ram suffered from more serious types of defects.The Returning Officer rejected the nomination of Prabha Ram on the grounds (1) that the name of the Constituency of the proposer was not given in the nomination paper; (2) that the numbers of electoral roll given in the nomination paper did not tally with the candidates number in the true copy of the electoral roll; (3) that at the name of a the proposer one more name was given and the entries in the electoral roll did not tally with the numbers mentioned by the proposer and the candidate in the nomination paper. Following the dictum of this Court in the case of N. T. Veluswami Thever v. G. Raja Nainar, AIR 1959 SC 422 the High Court has taken into consideration another defect, in that the thumb impression of one of the two proposers had not been authenticated in the manner required by law. Even ignoring grounds 2 and 3 forming the basis of the order of the Returning Officer rejecting the nomination paper of Prabha Ram as being possibly covered by the Proviso to Section 33 (4), the first detect pointed out by the Returning Officer was of a substantial character. It made it obligatory for him to reject the nomination paper. Over and above that defect the High Court has rightly noticed another fatal defect. Section 2 (i) of the Act says:"sign" in relation to a person who is unable to write his name means authenticate in such manner as, may be prescribed."The prescribed manner of authentication is to be found in Rule 2 (2) of the Rules. A thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the mark of that person. There was, therefore, a clear violation of this rule also. We see no reason to differ from the view of the High Court that the nomination paper of Prabha Ram was not improperly rejected by the Returning Officer.
### Response:
0
### Explanation:
3. We concur in the view of the High Court that filling up the column of postal address of the candidate in the nomination paper is necessary . The High Court has referred to several provisions in the Act and the Rules to point out the purpose of supplying the postal address. It appears that the name of the post office concerning Smalkha Mandi, Smalkha village, Model town etc., was Smalkha. The name of the post office was not Smalkha Mandi. On the face of the address of given in the nomination papers there was the defect of incorrect mention of the name of the post office. The name of the District was also not given. It has come in the evidence of the respondent that there were other places of the names at Smalkha and Smalkha Mandi in the States of Haryana and Rajasthan. Even ignoring the defects aforesaid the High Court has noticed on consideration of the evidence and specially of Jagan Nath himself that the postal address given in either of his nomination forms was so very incomplete that no letter addressed to him to that address could possibly be delivered to him. There were several persons of the name of Jagan Nath in Smalkha Mandi, Smalkha village. Jagan Nath was serving at shop of a Sweet Meat Seller, Railway Road, Smalkhs Mandi and was resident of Bharbbujanwali Gali. The interesting part of this case is that Jagan Nath did not file an election petition. It was filed by the brother of an unsuccessful candidate. Eventually Jagan Nath was impleaded as a respondent in the election petition. He filed a written statement and examined himself as R.W.5. His definite case was that until and unless some more details were given in his postal address no letter on that skeleton description as given in the nomination papers could be delivered to him by the postal authorities. Taking the totality of the circumstances the High court has rightly held that no postal address in effect was given on either of the nomination papers of JaganRule 4 of the Rules and Form 28 it would be noticed that non-supply of postal address of the candidate or supplying such cryptic address which virtually amounts to non-supply of address is a failure to comply with the provisions of Section 33 (1). Hence we agree with the findings of the High Court that Jagan Naths nomination papers were not improperly rejected by the Returning Officer.5. The nomination paper of Prabha Ram suffered from more serious types of defects.The Returning Officer rejected the nomination of Prabha Ram on the grounds (1) that the name of the Constituency of the proposer was not given in the nomination paper; (2) that the numbers of electoral roll given in the nomination paper did not tally with the candidates number in the true copy of the electoral roll; (3) that at the name of a the proposer one more name was given and the entries in the electoral roll did not tally with the numbers mentioned by the proposer and the candidate in the nomination paper. Following the dictum of this Court in the case of N. T. Veluswami Thever v. G. Raja Nainar, AIR 1959 SC 422 the High Court has taken into consideration another defect, in that the thumb impression of one of the two proposers had not been authenticated in the manner required by law. Even ignoring grounds 2 and 3 forming the basis of the order of the Returning Officer rejecting the nomination paper of Prabha Ram as being possibly covered by the Proviso to Section 33 (4), the first detect pointed out by the Returning Officer was of a substantial character. It made it obligatory for him to reject the nomination paper. Over and above that defect the High Court has rightly noticed another fatalprescribed manner of authentication is to be found in Rule 2 (2) of the Rules. A thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the mark of that person. There was, therefore, a clear violation of this rule also. We see no reason to differ from the view of the High Court that the nomination paper of Prabha Ram was not improperly rejected by the Returning Officer.
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M/S Sangham Tape Company Vs. Hans Raj | the impugned judgment, the High Court set aside the order of the Labour Court. Being aggrieved by and dissatisfied therewith, the appellant is in appeal before us. 5. Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of the Appellant would submit that having regard to the fact that the provisions of Order IX Rule 13 of the Code of Civil Procedure are applicable to an industrial adjudication, the Labour Court must be held to have ample jurisdiction to set aside an ex parte award, if sufficient cause therefor is shown. The learned counsel would further submit that such exercise of jurisdiction by the Labour Court cannot be limited to a period of 30 days from the date of publication of the award. Reliance, in this connection, has been placed on Anil Sood vs. Presiding Officer, Labour Court II [2001 (2) SCALE 193 ]. 6. An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and the rules framed thereunder. The rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure. Once the provisions of the Code of Civil Procedure are made applicable to the industrial adjudication, indisputably the provisions of Order IX Rule 13 thereof would be attracted. But unlike an ordinary Civil Court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf. An award made by an industrial court becomes enforceable under Section 17A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or Labour Court becomes functus officio. 7. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others [(1980) Supp. SCC 420] held that the Tribunal does not become functus officio provided an application for setting aside the award is filed within thirty days of publication of award having regard to the provisions contained in Section 11 of the Act and Rules 22 and 24 of the Industrial Disputes (Central) Rules, 1957 stating: "The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. The proceedings with regard to a reference under Section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17-A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent 3, acting on behalf of respondents 5 to 17 on January 19, 1977 i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal...." 8. The said decision is therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award but having regard to the provision contained in Section 17A an application therefore must be filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto the date, it has the power to entertain an application in connection with such dispute. 9. It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labor Court after one month of the publication of the award. 10. In view of this Courts decision in Grindlays Bank (supra), such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio. 11. Grindlays Bank (supra) has been followed in Satnam Verma vs. Union of India [(1984) Supp. SCC 712] and J.K. Synthetics Ltd vs. Collector of Central Excise [(1996) 6 SCC 92] . 12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh vs. State of Maharashtra - (2004) 2 SCC 362 ]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession. 13 | 0[ds]In view of this Courts decision in Grindlays Bank (supra), such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio11. Grindlays Bank (supra) has been followed in Satnam Verma vs. Union of India [(1984) Supp. SCC 712] and J.K. Synthetics Ltd vs. Collector of Central Excise [(1996) 6 SCC 92] 12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh vs. State of Maharashtra - (2004) 2 SCC 362 ]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession. | 0 | 1,489 | 328 | ### Instruction:
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the impugned judgment, the High Court set aside the order of the Labour Court. Being aggrieved by and dissatisfied therewith, the appellant is in appeal before us. 5. Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of the Appellant would submit that having regard to the fact that the provisions of Order IX Rule 13 of the Code of Civil Procedure are applicable to an industrial adjudication, the Labour Court must be held to have ample jurisdiction to set aside an ex parte award, if sufficient cause therefor is shown. The learned counsel would further submit that such exercise of jurisdiction by the Labour Court cannot be limited to a period of 30 days from the date of publication of the award. Reliance, in this connection, has been placed on Anil Sood vs. Presiding Officer, Labour Court II [2001 (2) SCALE 193 ]. 6. An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and the rules framed thereunder. The rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure. Once the provisions of the Code of Civil Procedure are made applicable to the industrial adjudication, indisputably the provisions of Order IX Rule 13 thereof would be attracted. But unlike an ordinary Civil Court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf. An award made by an industrial court becomes enforceable under Section 17A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or Labour Court becomes functus officio. 7. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others [(1980) Supp. SCC 420] held that the Tribunal does not become functus officio provided an application for setting aside the award is filed within thirty days of publication of award having regard to the provisions contained in Section 11 of the Act and Rules 22 and 24 of the Industrial Disputes (Central) Rules, 1957 stating: "The contention that the Tribunal had become functus officio and, therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A. Under Section 17-A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. The proceedings with regard to a reference under Section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and up to that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17-A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent 3, acting on behalf of respondents 5 to 17 on January 19, 1977 i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal...." 8. The said decision is therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award but having regard to the provision contained in Section 17A an application therefore must be filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto the date, it has the power to entertain an application in connection with such dispute. 9. It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labor Court after one month of the publication of the award. 10. In view of this Courts decision in Grindlays Bank (supra), such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio. 11. Grindlays Bank (supra) has been followed in Satnam Verma vs. Union of India [(1984) Supp. SCC 712] and J.K. Synthetics Ltd vs. Collector of Central Excise [(1996) 6 SCC 92] . 12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh vs. State of Maharashtra - (2004) 2 SCC 362 ]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession. 13
### Response:
0
### Explanation:
In view of this Courts decision in Grindlays Bank (supra), such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio11. Grindlays Bank (supra) has been followed in Satnam Verma vs. Union of India [(1984) Supp. SCC 712] and J.K. Synthetics Ltd vs. Collector of Central Excise [(1996) 6 SCC 92] 12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh vs. State of Maharashtra - (2004) 2 SCC 362 ]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession.
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Union Of India & Anr Vs. K.S. Subramanian | these rules would apply.(4) If any doubt arises-(a) whether these rules or any of them apply to any person, or(b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same".Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here.9. These rules merely lay down procedure for matters covered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure contained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff-respondent. It may be that mere termination of service, when the plaintiff respondent was holding a permanent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event, , there had to be a finding on the rule or order under which the plaintiff was entitled to continue in service until he reached the age of 60 years. The High Court had cited no rule made under Article 309 to show that there was any such provision.In P.L. Dhingra v. Union of India (A.I.R. 1958 S.C. 36 at 47.) Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47):"It has already been said that where a person is appointed substantively to a permanent post in Government service. he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, . he cannot be turned out of hi s post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servants rights and brings about a premature end of his employment".10. The propositions laid down in Dhingras case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Government servant. in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, he could be deemed in a given case to be punished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose service was subject to the over-riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of superannuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311.Even if we were to hold that the plaintiff-respondent was constructively punished, the provisions of Article 311, unfortunately, do not apply to such a Government servant as the respondent was. Whereas the power contained in Article 310 governs all Government servants, including those in the services connected with defence, the benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff-respondent in L. R: Khurana v. Union of India. ([1971] 3 S.C.R. 908.)11. As the plaintiff-respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiff -respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case (supra).12. We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage.The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed.13. | 1[ds]There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of punishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certainthe plaintiff-respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiff -respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas casewere asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage.The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal mustnt was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiffrespondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case | 1 | 3,894 | 499 | ### Instruction:
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these rules would apply.(4) If any doubt arises-(a) whether these rules or any of them apply to any person, or(b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same".Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here.9. These rules merely lay down procedure for matters covered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure contained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff-respondent. It may be that mere termination of service, when the plaintiff respondent was holding a permanent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event, , there had to be a finding on the rule or order under which the plaintiff was entitled to continue in service until he reached the age of 60 years. The High Court had cited no rule made under Article 309 to show that there was any such provision.In P.L. Dhingra v. Union of India (A.I.R. 1958 S.C. 36 at 47.) Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47):"It has already been said that where a person is appointed substantively to a permanent post in Government service. he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, . he cannot be turned out of hi s post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servants rights and brings about a premature end of his employment".10. The propositions laid down in Dhingras case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Government servant. in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, he could be deemed in a given case to be punished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose service was subject to the over-riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of superannuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311.Even if we were to hold that the plaintiff-respondent was constructively punished, the provisions of Article 311, unfortunately, do not apply to such a Government servant as the respondent was. Whereas the power contained in Article 310 governs all Government servants, including those in the services connected with defence, the benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff-respondent in L. R: Khurana v. Union of India. ([1971] 3 S.C.R. 908.)11. As the plaintiff-respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiff -respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case (supra).12. We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage.The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed.13.
### Response:
1
### Explanation:
There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of punishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certainthe plaintiff-respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiff -respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas casewere asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage.The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal mustnt was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings had be en taken against him as the holder of a post "connected with defence". In other eases of such servants, . where no such disciplinary proceedings are instituted (and none were started against the plaintiffrespondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case
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A. Joseph Salvaraj Vs. State of Gujarat & Others | on this and related points, we are not dealing with each one of them separately and independently. However, the ratio and gist of these would be reflected in our order. 20. In the instant case, we have to first examine whether any of the ingredients under Section 406, 420 or 506 (1) of the IPC have been made out to enable the Court to take cognizance thereof against the appellant or not. Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the appellant so as to extend the benefit of Appellants Channel “GOD TV” to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of Rs. 10 lacs on behalf of the Appellants Company as the fee to be paid to Siti cable by Appellant for telecast of channel “God TV” in Ahmedabad. Further grievance of the Complainant was that despite the telecast of “GOD TV”, the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainants FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be made out against the present appellant. 21. Criminal breach of trust is defined under Section 405 of the IPC and 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both. 22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant. 23. Section 506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged by complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the Appellant to the Complainant. 24. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainants FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainants FIR, charge sheet, documents etc. or not. 25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.26. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495 , relevant part thereof is reproduced hereinbelow: “A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.” 27. In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant- Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 - the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecast “GOD TV” in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellants prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.29. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law. | 1[ds]25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.26. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495 , relevant part thereof is reproduced hereinbelow:distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant- Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 - the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecastin the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellants prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.29. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law. | 1 | 2,599 | 528 | ### 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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on this and related points, we are not dealing with each one of them separately and independently. However, the ratio and gist of these would be reflected in our order. 20. In the instant case, we have to first examine whether any of the ingredients under Section 406, 420 or 506 (1) of the IPC have been made out to enable the Court to take cognizance thereof against the appellant or not. Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the appellant so as to extend the benefit of Appellants Channel “GOD TV” to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of Rs. 10 lacs on behalf of the Appellants Company as the fee to be paid to Siti cable by Appellant for telecast of channel “God TV” in Ahmedabad. Further grievance of the Complainant was that despite the telecast of “GOD TV”, the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainants FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be made out against the present appellant. 21. Criminal breach of trust is defined under Section 405 of the IPC and 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both. 22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant. 23. Section 506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged by complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the Appellant to the Complainant. 24. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainants FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainants FIR, charge sheet, documents etc. or not. 25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.26. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495 , relevant part thereof is reproduced hereinbelow: “A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.” 27. In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant- Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 - the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecast “GOD TV” in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellants prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.29. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law.
### Response:
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### Explanation:
25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.26. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495 , relevant part thereof is reproduced hereinbelow:distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the Appellant and Complainant- Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 - the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any way instrumental to telecastin the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellants prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.29. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law.
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G. T. Lad and Ors Vs. Chemical and Fibres of India Ltd | an interest or claim". According to Blacks Law Dictionary "abandonment" when used in relation to an office means "voluntary relinquishment." It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as abandonment of office.6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah and others, (1964) S.C.R. 265, it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in light of the surrounding circumstances of each case.Re. - Question No. 2 : This takes us to the consideration of the second question, namely, whether in the circumstances of the instant case, it could be said that the appellants had voluntarily abandoned the service of the company. It may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike (which ended on October 22, 1972) in response to the strike notice given by the union to the company to press its demand for re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the company that they did not intended to abandon the service but had also returned the cheques sent to them by the company on account of their leave salary, gratuity, etc. The appellants stand that the letter of the company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misras case, (1978) 2 S.C.C. 301, can be legitimately said to mean to detach, unfasten undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could not be stretch of imagination be construed as voluntary abandonment by them of the companys service. In Express Newspapers (P) Limited v. Michael Mark and another, (1963) 3 S.C.R. 405, which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants absence from duty was because of their peaceful strike to enforce their demands. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants.Re. - Question No. 3 : Let us now advert to the last but the most crucial question, namely, whether the action of the company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned companys service constituted as alteration in the conditions of service applicable to them immediately before the commencement of the said proceedings which prejudiciously affected them. Although the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonments of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Ltd. v. Michael Mark and another, where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.7. For the foregoing reasons, we are unable to uphold the impungned action of the company and the award under appeal which are manifestly illegal. | 1[ds]5. We will deal with these question seriatim :Re; Question No. 1 : In the Act, we do not find any definition of the expression "abandonment of service".6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same.or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in light of the surrounding circumstances of each case.Re. - Question No. 2may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike (which ended on October 22, 1972) in response to the strike notice given by the union to the company to press its demand for re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the company that they did not intended to abandon the service but had also returned the cheques sent to them by the company on account of their leave salary, gratuity, etc. The appellants stand that the letter of the company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misras case, (1978) 2 S.C.C. 301, can be legitimately said to mean to detach, unfasten undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could not be stretch of imagination be construed as voluntary abandonment by them of the companys service. In Express Newspapers (P) Limited v. Michael Mark and another, (1963) 3 S.C.R. 405, which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants absence from duty was because of their peaceful strike to enforce their demands. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants.Re. - Question No. 3the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonments of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Ltd. v. Michael Mark and another, where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.7. For the foregoing reasons, we are unable to uphold the impungned action of the company and the award under appeal which are manifestly illegal. | 1 | 2,272 | 822 | ### 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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an interest or claim". According to Blacks Law Dictionary "abandonment" when used in relation to an office means "voluntary relinquishment." It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as abandonment of office.6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah and others, (1964) S.C.R. 265, it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in light of the surrounding circumstances of each case.Re. - Question No. 2 : This takes us to the consideration of the second question, namely, whether in the circumstances of the instant case, it could be said that the appellants had voluntarily abandoned the service of the company. It may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike (which ended on October 22, 1972) in response to the strike notice given by the union to the company to press its demand for re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the company that they did not intended to abandon the service but had also returned the cheques sent to them by the company on account of their leave salary, gratuity, etc. The appellants stand that the letter of the company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misras case, (1978) 2 S.C.C. 301, can be legitimately said to mean to detach, unfasten undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could not be stretch of imagination be construed as voluntary abandonment by them of the companys service. In Express Newspapers (P) Limited v. Michael Mark and another, (1963) 3 S.C.R. 405, which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants absence from duty was because of their peaceful strike to enforce their demands. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants.Re. - Question No. 3 : Let us now advert to the last but the most crucial question, namely, whether the action of the company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned companys service constituted as alteration in the conditions of service applicable to them immediately before the commencement of the said proceedings which prejudiciously affected them. Although the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonments of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Ltd. v. Michael Mark and another, where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.7. For the foregoing reasons, we are unable to uphold the impungned action of the company and the award under appeal which are manifestly illegal.
### Response:
1
### Explanation:
5. We will deal with these question seriatim :Re; Question No. 1 : In the Act, we do not find any definition of the expression "abandonment of service".6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same.or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in light of the surrounding circumstances of each case.Re. - Question No. 2may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike (which ended on October 22, 1972) in response to the strike notice given by the union to the company to press its demand for re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the company that they did not intended to abandon the service but had also returned the cheques sent to them by the company on account of their leave salary, gratuity, etc. The appellants stand that the letter of the company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misras case, (1978) 2 S.C.C. 301, can be legitimately said to mean to detach, unfasten undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could not be stretch of imagination be construed as voluntary abandonment by them of the companys service. In Express Newspapers (P) Limited v. Michael Mark and another, (1963) 3 S.C.R. 405, which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants absence from duty was because of their peaceful strike to enforce their demands. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants.Re. - Question No. 3the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonments of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Ltd. v. Michael Mark and another, where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.7. For the foregoing reasons, we are unable to uphold the impungned action of the company and the award under appeal which are manifestly illegal.
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T.I. JOSE Vs. MANAGING DIRECTOR, KERALA WATER AUTHORITY | Operators should not exceed on this account. These modifications will take effect from 1- 3-1997.”6. The above note indicates that as a result of the creation of the intermediate post of Senior Operators, that post would be allowed a scale of pay equal to the existing scale of pay of Head Operators. Consequently, Head Operators would be allowed a scale of pay equivalent to that of a Mechanical Superintendents. The above note also prescribes the ratios to be maintained. In consequence, the following revised scales of pay were given:(i) Operators: Rs 3440-5385;(ii) Senior Operators: Rs 4710-7710 (equivalent to the revised pay scale for Head Operators); and(iii) Head Operators: Rs 5635-9135 (equivalent to the revised pay scale of Mechanical Superintendents).7. The decision of the State Goverment to create an intermediate post was challenged in a Writ Petition before the Kerala High Court. By a judgment dated 12 April 2002, a Single Judge of the High Court came to the conclusion that the introduction of an intermediate post could have only been carried out by means of an amendment to the Special Rules and not by an administrative order. Consequently, the Single Judge held that the notification introducing the post of Senior Operator between Operators and Head Operators shall not work against the appellants and their normal chance of getting grade pay in accordance with the prevailing orders and according to the Special Rules. The Court held that, while the appellants could not be prevented from availing of the benefit of the pay revision, the existing benefit under statutory rules could not be taken away without amending the Rules.8. On 12 March 2003, the Single Judge granted revised pay scales to the petitioners in OP 4490 of 2000 with effect from 1 March 1997. The order was followed on 3 September 2003 in OP 22119 of 2003.9. Following the above decisions of the High Court, a Government Order was issued by the State Government on 18 March 2004. By the GO, the post of Senior Operator was deleted and the scales of pay were refixed corresponding to the existing pre-revised scales of pay. The tabulated chart contained in the GO is as follows:tableParagraph 8 of the GO reads as follows:“The issues raised by the petitioners in Ext.p7 representation dated 16.11.01 O.P.No.19752/02 is disposed of on the above basis. These orders are issued without prejudice to the directions/orders already issued by the Hon’ble High Court in the other related O.Ps and subject to the orders of the Hon’ble Court in the O.Ps pending in the matter.”10. Review Petitions were filed by KWA before the High Court against the orders dated 12 March 2003 and 3 September 2003 on the ground that the scale of pay drawn by the appellants will be lowered in light of the GO. The Review Petitions were dismissed on 8 July 2004 by the High Court on the ground that the GO cannot affect the right of the appellants flowing from the judgment.11. The State and KWA preferred Writ Appeals against the original judgments of the learned Single Judges as well as the decision in review. The Division Bench allowed the Writ Appeals. In review, the High Court held that there shall be no recovery of amounts already disbursed to the employees or the pensioners of the KWA on the basis of the pay revision order, which would not have been payable on account of GO(P) No.18/04/WRD, but which was disbured on or before the date on which the judgment sought to be reviewed was passed.12. The grievance which has been urged on behalf of the appellants by Mr. C.S. Rajan, learned senior counsel, is that as a result of the GO dated 18 March 2004 the pay scales of Head Operators were reduced from Rs 5635-9135 to Rs 4710-7710. Learned senior counsel submitted that the State Government, in the process of complying with the judgment of the learned Single Judge holding that an intermediate post could not have been created by an administrative circular, not only deleted the post, but reduced the pay scale which was being drawn by the Head Operators. This, it has been submitted, was an arbitrary exercise of power.13. On a careful analysis of the pay revision, it has emerged before the Court that Head Operators were drawing a pre-revised scale of Rs 1455-2440. The equivalent revised scale of pay under the third pay revision was Rs 4710-7710. Since an intermediate post of Senior Operator was created by an administrative decision, the scale of pay for that post was fixed at the pay scale allowable to the next higher post of Head Operator. Consequently, the pay scale for the post of Head Operator was made equivalent to that which was drawn in the next higher post of Mechanical Superintendent. The High Court held that an intermediate post could not have been created by an administrative order and would require an amendment to the statutory rules. Following this, the State Government in its GO dated 18 March 2004 abolished the intermediate post. Upon the abolition of the intermediate post, all that was done by the GO dated 18 March 2004 was to clarify that Operators, Head Operators and Mechanical Superintendents would be entitled to draw equivalent revised scales of pay corresponding to their pre-revised pay scales.14. We are in agreement with the view of the High Court that the higher pay scale which was given to Head Operators under note 13 was occasioned by the creation of an intermediate post of Senior Operators. Once the intermediate post was abolished since it was found to be ultra vires by the High Court, the pay scale of Head Operators was restored to the exactly corresponding pay scale under the revised scales of pay. This is clear from the following pre-revised scales of pay and the equivalent revised pay scales which have been granted to the above categories:table15. This action was consistent with law. The High Court has fairly issued a direction that no recoveries shall be made. | 0[ds]13. On a careful analysis of the pay revision, it has emerged before the Court that Head Operators were drawing a pre-revised scale of Rs 1455-2440. The equivalent revised scale of pay under the third pay revision was Rs 4710-7710. Since an intermediate post of Senior Operator was created by an administrative decision, the scale of pay for that post was fixed at the pay scale allowable to the next higher post of Head Operator. Consequently, the pay scale for the post of Head Operator was made equivalent to that which was drawn in the next higher post of Mechanical Superintendent. The High Court held that an intermediate post could not have been created by an administrative order and would require an amendment to the statutory rules. Following this, the State Government in its GO dated 18 March 2004 abolished the intermediate post. Upon the abolition of the intermediate post, all that was done by the GO dated 18 March 2004 was to clarify that Operators, Head Operators and Mechanical Superintendents would be entitled to draw equivalent revised scales of pay corresponding to their pre-revised pay scales.14. We are in agreement with the view of the High Court that the higher pay scale which was given to Head Operators under note 13 was occasioned by the creation of an intermediate post of Senior Operators. Once the intermediate post was abolished since it was found to be ultra vires by the High Court, the pay scale of Head Operators was restored to the exactly corresponding pay scale under the revised scales of pay. This is clear from the following pre-revised scales of pay and the equivalent revised pay scales which have been granted to the aboveThis action was consistent with law. The High Court has fairly issued a direction that no recoveries shall be made. | 0 | 1,543 | 327 | ### 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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Operators should not exceed on this account. These modifications will take effect from 1- 3-1997.”6. The above note indicates that as a result of the creation of the intermediate post of Senior Operators, that post would be allowed a scale of pay equal to the existing scale of pay of Head Operators. Consequently, Head Operators would be allowed a scale of pay equivalent to that of a Mechanical Superintendents. The above note also prescribes the ratios to be maintained. In consequence, the following revised scales of pay were given:(i) Operators: Rs 3440-5385;(ii) Senior Operators: Rs 4710-7710 (equivalent to the revised pay scale for Head Operators); and(iii) Head Operators: Rs 5635-9135 (equivalent to the revised pay scale of Mechanical Superintendents).7. The decision of the State Goverment to create an intermediate post was challenged in a Writ Petition before the Kerala High Court. By a judgment dated 12 April 2002, a Single Judge of the High Court came to the conclusion that the introduction of an intermediate post could have only been carried out by means of an amendment to the Special Rules and not by an administrative order. Consequently, the Single Judge held that the notification introducing the post of Senior Operator between Operators and Head Operators shall not work against the appellants and their normal chance of getting grade pay in accordance with the prevailing orders and according to the Special Rules. The Court held that, while the appellants could not be prevented from availing of the benefit of the pay revision, the existing benefit under statutory rules could not be taken away without amending the Rules.8. On 12 March 2003, the Single Judge granted revised pay scales to the petitioners in OP 4490 of 2000 with effect from 1 March 1997. The order was followed on 3 September 2003 in OP 22119 of 2003.9. Following the above decisions of the High Court, a Government Order was issued by the State Government on 18 March 2004. By the GO, the post of Senior Operator was deleted and the scales of pay were refixed corresponding to the existing pre-revised scales of pay. The tabulated chart contained in the GO is as follows:tableParagraph 8 of the GO reads as follows:“The issues raised by the petitioners in Ext.p7 representation dated 16.11.01 O.P.No.19752/02 is disposed of on the above basis. These orders are issued without prejudice to the directions/orders already issued by the Hon’ble High Court in the other related O.Ps and subject to the orders of the Hon’ble Court in the O.Ps pending in the matter.”10. Review Petitions were filed by KWA before the High Court against the orders dated 12 March 2003 and 3 September 2003 on the ground that the scale of pay drawn by the appellants will be lowered in light of the GO. The Review Petitions were dismissed on 8 July 2004 by the High Court on the ground that the GO cannot affect the right of the appellants flowing from the judgment.11. The State and KWA preferred Writ Appeals against the original judgments of the learned Single Judges as well as the decision in review. The Division Bench allowed the Writ Appeals. In review, the High Court held that there shall be no recovery of amounts already disbursed to the employees or the pensioners of the KWA on the basis of the pay revision order, which would not have been payable on account of GO(P) No.18/04/WRD, but which was disbured on or before the date on which the judgment sought to be reviewed was passed.12. The grievance which has been urged on behalf of the appellants by Mr. C.S. Rajan, learned senior counsel, is that as a result of the GO dated 18 March 2004 the pay scales of Head Operators were reduced from Rs 5635-9135 to Rs 4710-7710. Learned senior counsel submitted that the State Government, in the process of complying with the judgment of the learned Single Judge holding that an intermediate post could not have been created by an administrative circular, not only deleted the post, but reduced the pay scale which was being drawn by the Head Operators. This, it has been submitted, was an arbitrary exercise of power.13. On a careful analysis of the pay revision, it has emerged before the Court that Head Operators were drawing a pre-revised scale of Rs 1455-2440. The equivalent revised scale of pay under the third pay revision was Rs 4710-7710. Since an intermediate post of Senior Operator was created by an administrative decision, the scale of pay for that post was fixed at the pay scale allowable to the next higher post of Head Operator. Consequently, the pay scale for the post of Head Operator was made equivalent to that which was drawn in the next higher post of Mechanical Superintendent. The High Court held that an intermediate post could not have been created by an administrative order and would require an amendment to the statutory rules. Following this, the State Government in its GO dated 18 March 2004 abolished the intermediate post. Upon the abolition of the intermediate post, all that was done by the GO dated 18 March 2004 was to clarify that Operators, Head Operators and Mechanical Superintendents would be entitled to draw equivalent revised scales of pay corresponding to their pre-revised pay scales.14. We are in agreement with the view of the High Court that the higher pay scale which was given to Head Operators under note 13 was occasioned by the creation of an intermediate post of Senior Operators. Once the intermediate post was abolished since it was found to be ultra vires by the High Court, the pay scale of Head Operators was restored to the exactly corresponding pay scale under the revised scales of pay. This is clear from the following pre-revised scales of pay and the equivalent revised pay scales which have been granted to the above categories:table15. This action was consistent with law. The High Court has fairly issued a direction that no recoveries shall be made.
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13. On a careful analysis of the pay revision, it has emerged before the Court that Head Operators were drawing a pre-revised scale of Rs 1455-2440. The equivalent revised scale of pay under the third pay revision was Rs 4710-7710. Since an intermediate post of Senior Operator was created by an administrative decision, the scale of pay for that post was fixed at the pay scale allowable to the next higher post of Head Operator. Consequently, the pay scale for the post of Head Operator was made equivalent to that which was drawn in the next higher post of Mechanical Superintendent. The High Court held that an intermediate post could not have been created by an administrative order and would require an amendment to the statutory rules. Following this, the State Government in its GO dated 18 March 2004 abolished the intermediate post. Upon the abolition of the intermediate post, all that was done by the GO dated 18 March 2004 was to clarify that Operators, Head Operators and Mechanical Superintendents would be entitled to draw equivalent revised scales of pay corresponding to their pre-revised pay scales.14. We are in agreement with the view of the High Court that the higher pay scale which was given to Head Operators under note 13 was occasioned by the creation of an intermediate post of Senior Operators. Once the intermediate post was abolished since it was found to be ultra vires by the High Court, the pay scale of Head Operators was restored to the exactly corresponding pay scale under the revised scales of pay. This is clear from the following pre-revised scales of pay and the equivalent revised pay scales which have been granted to the aboveThis action was consistent with law. The High Court has fairly issued a direction that no recoveries shall be made.
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M/S. GRANULES INDIA LTD Vs. UNION OF INDIA | Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench order of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief. 6. Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No.14288 of 2004 (CC No.5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary. 7. Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified. 8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption. In Shri Krishna Pharmaceuticals Limited (supra), the High Court observed as follows:?7. …Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.?9. It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved. 10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows: ¬?10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.? | 1[ds]8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of theShri Krishna Pharmaceuticals Limited (supra), the High Court observed as…Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows:Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.? | 1 | 1,550 | 788 | ### 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:
Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench order of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief. 6. Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No.14288 of 2004 (CC No.5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary. 7. Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified. 8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption. In Shri Krishna Pharmaceuticals Limited (supra), the High Court observed as follows:?7. …Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.?9. It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved. 10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows: ¬?10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.?
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1
### Explanation:
8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of theShri Krishna Pharmaceuticals Limited (supra), the High Court observed as…Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows:Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.?
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ATUL CHANDRA DAS(D) TR.LRS Vs. RABINDRA NATH BHATTACHARYA(D)TR.LRS.&ORS | of India, mutual insurance company, provident insurance society or from a provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, (26 of 1881) other than a promissory note; (f) Omitted by W.B. Money Lender Amendment Act, (Act IV of 1931) (g) * * * * (h) a loan made to or by the Administrator General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) a loan or debenture in respect of which dealings are listed on any Stock Exchange;? 13. Commercial loan is defined in Section 2(4) of the State Act. Section 2(22) defines suit to which this Act applies. It reads as follows:- "2(22) ?suit to which this Act applies? means any suit or proceeding instituted or filed on or after the 1 st day of January, 1939 or pending on that date and includes a proceeding in execution- (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.? 14. Section 36 comes under the heading ‘Reopening of transactions?. It deals with the power of the Court to exercise all or any of the various powers which are mentioned therein. Sub Section 4 of Section 36 reads as follows:- ?36(4). This Section shall apply to any Suit, whatever it forms may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement of security in respect of a loan or for the redemption of money such security.? 15. It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts. 16. We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given. 17. The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list. Article 254 of the Constitution of India reads as follows:- ?254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State .? 18. In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State. 19. The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision. | 0[ds]10. Keeping Section 58(c) side by side with Section 37(a) of the State Act, the conclusion is inevitable that the State legislature has intended to override the effect of proviso to Section 58(c) of the Transfer of Property Act by enacting Section 37(a) in the State Act. Section 37(a) was incorporated by way of an amendment in the State Act. Reading of Section 37(a) brings out the Legislative intent with unambiguous clarity and therefore the High court was right in relying upon Section 37(a) of the State Act to find that though it was by agreement dated 07.12.1959 which is a separate document that condition to make it a mortgage was incorporated it would not make any difference. We may also notice that despite the sale deed dated 27.11.1959, the Bhattacharyas continued to be in possession of the plaint scheduled property and it has been found that they paid the taxes. It is further found that the market value of the property would not have been less than Rs.30 thousand as on the date of the alleged sale namely 27.11.1959.It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts.We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given.The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list.In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State.The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision. | 0 | 4,800 | 664 | ### 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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of India, mutual insurance company, provident insurance society or from a provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, (26 of 1881) other than a promissory note; (f) Omitted by W.B. Money Lender Amendment Act, (Act IV of 1931) (g) * * * * (h) a loan made to or by the Administrator General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) a loan or debenture in respect of which dealings are listed on any Stock Exchange;? 13. Commercial loan is defined in Section 2(4) of the State Act. Section 2(22) defines suit to which this Act applies. It reads as follows:- "2(22) ?suit to which this Act applies? means any suit or proceeding instituted or filed on or after the 1 st day of January, 1939 or pending on that date and includes a proceeding in execution- (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.? 14. Section 36 comes under the heading ‘Reopening of transactions?. It deals with the power of the Court to exercise all or any of the various powers which are mentioned therein. Sub Section 4 of Section 36 reads as follows:- ?36(4). This Section shall apply to any Suit, whatever it forms may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement of security in respect of a loan or for the redemption of money such security.? 15. It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts. 16. We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given. 17. The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list. Article 254 of the Constitution of India reads as follows:- ?254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State .? 18. In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State. 19. The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision.
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0
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10. Keeping Section 58(c) side by side with Section 37(a) of the State Act, the conclusion is inevitable that the State legislature has intended to override the effect of proviso to Section 58(c) of the Transfer of Property Act by enacting Section 37(a) in the State Act. Section 37(a) was incorporated by way of an amendment in the State Act. Reading of Section 37(a) brings out the Legislative intent with unambiguous clarity and therefore the High court was right in relying upon Section 37(a) of the State Act to find that though it was by agreement dated 07.12.1959 which is a separate document that condition to make it a mortgage was incorporated it would not make any difference. We may also notice that despite the sale deed dated 27.11.1959, the Bhattacharyas continued to be in possession of the plaint scheduled property and it has been found that they paid the taxes. It is further found that the market value of the property would not have been less than Rs.30 thousand as on the date of the alleged sale namely 27.11.1959.It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts.We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given.The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list.In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State.The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision.
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Srinivas Gupta Vs. Hindustan Commercial Bank Limited | The mere fact that two mortgage deeds were executed for the entire amount due on April 1, 1947, does not in our opinion amount to payment of money due to the bank. All that the transaction amounted to was that, in place of the tins of ghee, the two mortgages were given as security; but the liability under clause 13 having accrued because the tins of ghee were found to be not of the kind and quality which they were stated to be, the execution of mortagage deeds by itself cannot be said to have made up the loss to the bank. The responsibility of the appellant under clause 13 was to make good the loss to the bank, and mere execution of the mortgage deeds does not make good the loss which can only be made good after the money secured by the mortgages has been realised. The view taken by the High Court that the security money was refundable only when there was no claim of the bank for any loss under the terms of the agreement and that there being such a claim in the present case, the security money could not be ordered to be refunded till the entire sum due was actually realised is therefore correct. The mere execution of two mortgage deeds as security does not amount to realisation of the sum due and would not show that there was no loss to the bank on account of the fact that the security of tins of ghee was not of the kind and quality which it was stated to beIt has, however, been urged on behalf of the appellant that, since the judgment of the High Court, certain circumstances have intervened which show that the liability of the appellant has come to end. It appears that two suits were filed by the bank on the basis of the two mortgages, one against the four brothers, and the other against the father. The suit against the four brothers was decreed but the suit against the father was dismissed. The appeal by the bank against the dismissal of the suit against the father was also dismissed by the High Court and thereafter a petition for leave to appeal to this court was filed in the High Court. As to the decree against the four brother it was put in execution and a compromise was arrived at in 1961 by which Rs. 20, 100 were paid to the bank while the remaining amount due was to be paid in certain instalments. The terms of that compromise relating to instalments, however, were not carried out by the four brothers and in consequence the bank had to file another execution application. Finally, compromise was arrived at in August, 1966, in the second execution application and a sum of Rs. 24, 000 was paid to the bank and this amount together with Rs. 20, 100 was taken in full satisfaction of the decree against the four brothers. It was also agreed that the bank would not prosecute the application for leave to appeal against the father, and the father would not execute his decree for costs4. It is urged that in view of this compromise the entire liability of Messrs. Tailong Brothers is wiped off and in consequence the appellant is now entitled to refund. We are of opinion that this is not the correct interpretation of the compromise arrived at in August, 1966. It is true that by this compromise the decree against the four brothers on the mortgage for Rs. 28, 497-13-8 has been satisfied. It is also true that by this compromise the bank which had already lost in two courts against the father had agreed not to proceed against the father on the basis of the other mortgage for Rs. 35, 000 executed by the father. But that only means that the fathers liability under the mortgage no longer exists. We have already referred to the clause in the mortgage deed executed by the brothers which shows that their joint and several personal liability was not to be affected by the execution of the mortgage-deed by the father. Therefore, it cannot be said that the bank by agreeing not to proceed against the father on the basis of the mortgage deed executed by him had agreed to absolve the brothers also from their personal liability for the sum of Rs. 35, 000. It follows therefore that the liability of Tailong Brothers for the sum of Rs. 35, 000 which had been secured by the second mortgage still remains. As such the appellant is liable under the contract of indemnity contained in clause 13 to make good the loss yet in spite of the compromise in the second execution applicationLearned counsel for the appellant has referred in this connection to a number of cases relating to contracts of guarantee. We think it unnecessary to refer to them because a contract of indemnity is very different from a contract of guarantee. Reference is also made to section 126 to section 147 in Chapter VIII of the Indian Contract Act, No. 9 of 1872. We do not think it necessary to refer to these sections because they refer to contract of guarantee and not to contracts of indemnity, which clause 13 is. There is a clear distinction between a contract of indemnity on the one hand and a contract a guarantee or suretyship on the other. The present is clearly a case of contract of indemnity and clause 13 of the agreement being applicable, the appellant is under the contract of indemnity bound to indemnity the bank for the loss caused to it. Further it is clear in this case that, even after the compromise, the bank has not yet recovered Rs. 63, 497-13-8, and, in that sense there has been loss to the bank and so clause 13 applies and therefore, by virtue of clause 26 the appellant is not entitled yet to refund of the security money | 0[ds]3. We are of opinion that there is no force in this appeal. Clause 13 of the agreement is clearly a contract of indemnity by which the bank is indemnified in connection with certain matters mentioned therein. It has not been and cannot be disputed that when it was found that the tins of ghee contained rotten ghee or water, the appellant became liable under the contract of indemnity contained in clause 13 of the agreement. Under the clause it was his duty to see that goods pledged to the bank as security were not only genuine but of the same kind and quality which they were said to be when advance was made. Clearly the advance was made by the bank on the assurance of the appellant that the tins of ghee given as security were genuine and of standard quality. When however they were found later on to be full of either rotten ghee or water, the appellant became liable under clause 13 for the loss caused to the bank by the security being found to be not of the kind and quality which it was stated to beThe only question then is whether the liability of the appellant which arose under clause 13 on the discovery that the tins contained either rotten stuff or water can be said to have been discharged by the execution of two mortgage deeds on April 1, 1947, which the appellant arranged. We agree with the High Court that that is notmere fact that two mortgage deeds were executed for the entire amount due on April 1, 1947, does not in our opinion amount to payment of money due to the bank. All that the transaction amounted to was that, in place of the tins of ghee, the two mortgages were given as security; but the liability under clause 13 having accrued because the tins of ghee were found to be not of the kind and quality which they were stated to be, the execution of mortagage deeds by itself cannot be said to have made up the loss to theare of opinion that this is not the correct interpretation of the compromise arrived at in August, 1966. It is true that by this compromise the decree against the four brothers on the mortgage for Rs. 28,has been satisfied. It is also true that by this compromise the bank which had already lost in two courts against the father had agreed not to proceed against the father on the basis of the other mortgage for Rs. 35, 000 executed by the father. But that only means that the fathers liability under the mortgage no longer exists. We have already referred to the clause in the mortgage deed executed by the brothers which shows that their joint and several personal liability was not to be affected by the execution of theby the father. Therefore, it cannot be said that the bank by agreeing not to proceed against the father on the basis of the mortgage deed executed by him had agreed to absolve the brothers also from their personal liability for the sum of Rs. 35, 000. It follows therefore that the liability of Tailong Brothers for the sum of Rs. 35, 000 which had been secured by the second mortgage still remains. As such the appellant is liable under the contract of indemnity contained in clause 13 to make good the loss yet in spite of the compromise in the second execution applicationLearned counsel for the appellant has referred in this connection to a number of cases relating to contracts of guarantee. We think it unnecessary to refer to them because a contract of indemnity is very different from a contract of guarantee. Reference is also made to section 126 to section 147 in Chapter VIII of the Indian Contract Act, No. 9 of 1872. We do not think it necessary to refer to these sections because they refer to contract of guarantee and not to contracts of indemnity, which clause 13 is. There is a clear distinction between a contract of indemnity on the one hand and a contract a guarantee or suretyship on the other. The present is clearly a case of contract of indemnity and clause 13 of the agreement being applicable, the appellant is under the contract of indemnity bound to indemnity the bank for the loss caused to it. Further it is clear in this case that, even after the compromise, the bank has not yet recovered Rs. 63,and, in that sense there has been loss to the bank and so clause 13 applies and therefore, by virtue of clause 26 the appellant is not entitled yet to refund of the security money | 0 | 2,790 | 846 | ### 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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The mere fact that two mortgage deeds were executed for the entire amount due on April 1, 1947, does not in our opinion amount to payment of money due to the bank. All that the transaction amounted to was that, in place of the tins of ghee, the two mortgages were given as security; but the liability under clause 13 having accrued because the tins of ghee were found to be not of the kind and quality which they were stated to be, the execution of mortagage deeds by itself cannot be said to have made up the loss to the bank. The responsibility of the appellant under clause 13 was to make good the loss to the bank, and mere execution of the mortgage deeds does not make good the loss which can only be made good after the money secured by the mortgages has been realised. The view taken by the High Court that the security money was refundable only when there was no claim of the bank for any loss under the terms of the agreement and that there being such a claim in the present case, the security money could not be ordered to be refunded till the entire sum due was actually realised is therefore correct. The mere execution of two mortgage deeds as security does not amount to realisation of the sum due and would not show that there was no loss to the bank on account of the fact that the security of tins of ghee was not of the kind and quality which it was stated to beIt has, however, been urged on behalf of the appellant that, since the judgment of the High Court, certain circumstances have intervened which show that the liability of the appellant has come to end. It appears that two suits were filed by the bank on the basis of the two mortgages, one against the four brothers, and the other against the father. The suit against the four brothers was decreed but the suit against the father was dismissed. The appeal by the bank against the dismissal of the suit against the father was also dismissed by the High Court and thereafter a petition for leave to appeal to this court was filed in the High Court. As to the decree against the four brother it was put in execution and a compromise was arrived at in 1961 by which Rs. 20, 100 were paid to the bank while the remaining amount due was to be paid in certain instalments. The terms of that compromise relating to instalments, however, were not carried out by the four brothers and in consequence the bank had to file another execution application. Finally, compromise was arrived at in August, 1966, in the second execution application and a sum of Rs. 24, 000 was paid to the bank and this amount together with Rs. 20, 100 was taken in full satisfaction of the decree against the four brothers. It was also agreed that the bank would not prosecute the application for leave to appeal against the father, and the father would not execute his decree for costs4. It is urged that in view of this compromise the entire liability of Messrs. Tailong Brothers is wiped off and in consequence the appellant is now entitled to refund. We are of opinion that this is not the correct interpretation of the compromise arrived at in August, 1966. It is true that by this compromise the decree against the four brothers on the mortgage for Rs. 28, 497-13-8 has been satisfied. It is also true that by this compromise the bank which had already lost in two courts against the father had agreed not to proceed against the father on the basis of the other mortgage for Rs. 35, 000 executed by the father. But that only means that the fathers liability under the mortgage no longer exists. We have already referred to the clause in the mortgage deed executed by the brothers which shows that their joint and several personal liability was not to be affected by the execution of the mortgage-deed by the father. Therefore, it cannot be said that the bank by agreeing not to proceed against the father on the basis of the mortgage deed executed by him had agreed to absolve the brothers also from their personal liability for the sum of Rs. 35, 000. It follows therefore that the liability of Tailong Brothers for the sum of Rs. 35, 000 which had been secured by the second mortgage still remains. As such the appellant is liable under the contract of indemnity contained in clause 13 to make good the loss yet in spite of the compromise in the second execution applicationLearned counsel for the appellant has referred in this connection to a number of cases relating to contracts of guarantee. We think it unnecessary to refer to them because a contract of indemnity is very different from a contract of guarantee. Reference is also made to section 126 to section 147 in Chapter VIII of the Indian Contract Act, No. 9 of 1872. We do not think it necessary to refer to these sections because they refer to contract of guarantee and not to contracts of indemnity, which clause 13 is. There is a clear distinction between a contract of indemnity on the one hand and a contract a guarantee or suretyship on the other. The present is clearly a case of contract of indemnity and clause 13 of the agreement being applicable, the appellant is under the contract of indemnity bound to indemnity the bank for the loss caused to it. Further it is clear in this case that, even after the compromise, the bank has not yet recovered Rs. 63, 497-13-8, and, in that sense there has been loss to the bank and so clause 13 applies and therefore, by virtue of clause 26 the appellant is not entitled yet to refund of the security money
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0
### Explanation:
3. We are of opinion that there is no force in this appeal. Clause 13 of the agreement is clearly a contract of indemnity by which the bank is indemnified in connection with certain matters mentioned therein. It has not been and cannot be disputed that when it was found that the tins of ghee contained rotten ghee or water, the appellant became liable under the contract of indemnity contained in clause 13 of the agreement. Under the clause it was his duty to see that goods pledged to the bank as security were not only genuine but of the same kind and quality which they were said to be when advance was made. Clearly the advance was made by the bank on the assurance of the appellant that the tins of ghee given as security were genuine and of standard quality. When however they were found later on to be full of either rotten ghee or water, the appellant became liable under clause 13 for the loss caused to the bank by the security being found to be not of the kind and quality which it was stated to beThe only question then is whether the liability of the appellant which arose under clause 13 on the discovery that the tins contained either rotten stuff or water can be said to have been discharged by the execution of two mortgage deeds on April 1, 1947, which the appellant arranged. We agree with the High Court that that is notmere fact that two mortgage deeds were executed for the entire amount due on April 1, 1947, does not in our opinion amount to payment of money due to the bank. All that the transaction amounted to was that, in place of the tins of ghee, the two mortgages were given as security; but the liability under clause 13 having accrued because the tins of ghee were found to be not of the kind and quality which they were stated to be, the execution of mortagage deeds by itself cannot be said to have made up the loss to theare of opinion that this is not the correct interpretation of the compromise arrived at in August, 1966. It is true that by this compromise the decree against the four brothers on the mortgage for Rs. 28,has been satisfied. It is also true that by this compromise the bank which had already lost in two courts against the father had agreed not to proceed against the father on the basis of the other mortgage for Rs. 35, 000 executed by the father. But that only means that the fathers liability under the mortgage no longer exists. We have already referred to the clause in the mortgage deed executed by the brothers which shows that their joint and several personal liability was not to be affected by the execution of theby the father. Therefore, it cannot be said that the bank by agreeing not to proceed against the father on the basis of the mortgage deed executed by him had agreed to absolve the brothers also from their personal liability for the sum of Rs. 35, 000. It follows therefore that the liability of Tailong Brothers for the sum of Rs. 35, 000 which had been secured by the second mortgage still remains. As such the appellant is liable under the contract of indemnity contained in clause 13 to make good the loss yet in spite of the compromise in the second execution applicationLearned counsel for the appellant has referred in this connection to a number of cases relating to contracts of guarantee. We think it unnecessary to refer to them because a contract of indemnity is very different from a contract of guarantee. Reference is also made to section 126 to section 147 in Chapter VIII of the Indian Contract Act, No. 9 of 1872. We do not think it necessary to refer to these sections because they refer to contract of guarantee and not to contracts of indemnity, which clause 13 is. There is a clear distinction between a contract of indemnity on the one hand and a contract a guarantee or suretyship on the other. The present is clearly a case of contract of indemnity and clause 13 of the agreement being applicable, the appellant is under the contract of indemnity bound to indemnity the bank for the loss caused to it. Further it is clear in this case that, even after the compromise, the bank has not yet recovered Rs. 63,and, in that sense there has been loss to the bank and so clause 13 applies and therefore, by virtue of clause 26 the appellant is not entitled yet to refund of the security money
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Nirmal Trading Company Vs. Commissioner Of Income Tax, Central (Calcutta)October 10, 1 | R. S. Pathak, J. 1. This appeal by certificate under S.66A(2) of the Indian Income tax Act, 1922 relates to the application of Explanation. 2 to S.24 (1) of the Indian Income tax Act. 2. The assessee deals in paper, hessian and B. Twill. After assessment by the Income Tax Officer for the assessment year 1955-56, and thereafter an appeal disposed of by the Appellate Assistant Commissioner, the Income Tax Appellate Tribunal in second appeal found that certain transaction entered into by the assessee could not be described as "speculative transactions" within the meaning of Explanation 2 to S.24 (1) of the Indian Income tax Act, 1922 and allowing the appeal it directed that the loss suffered by the assessee should be set off under S.24 (1) of the Act. At the instance of the Revenue, the Appellate Tribunal referred the following question to the High Court at Calcutta for its opinion :-"Whether, on the facts and in the circumstances of the case, the loss of Rs. 1,03,688/- was the result of speculative transactions within the meaning of Explanation 2 to S.24 (1) of the Indian Income tax Act, 1922, and therefore, was not allowable to be set off under S.24 (1) of the said Act?" The High Court has answered the question in favour of the revenue. 3. It appears the assessee entered into several transactions of sale and purchase with different parties, and the transactions were settled by handing over delivery orders. There is no evidence that actual delivery of the goods was evereffected either to the assessee or to subsequent purchasers from him. All that passed were the delivery orders and payment by cheque. The High Court has taken the view that in the absence of actual delivery the transactions attracted Explanation 2 to S.24 (1) and must be regarded as "speculative transactions." It seems to us that the High Court is right, having regard to the law laid down by this Court in Devenport and Co. Pvt. Ltd. v. Commr. of Income tax, West Bengal, (1975) 100 ITR 715 . It is urged on behalf of the assessee that the case falls under Raghunath Prasad Poddar v. Commr. of Income tax, Calcutta (1973) 90 ITR 140 (SC). But that decision has been overruled by this Court in Davenport and Co. P. Ltd. (supra), and in any event no question of invoking that decision arises because in the present case there has never been any suggestion that actual delivery of goods was ultimately effected. The case o the assessee throughout has been that handing over of the delivery orders was sufficient as constituting actual delivery of the goods. | 0[ds]3. It appears the assessee entered into several transactions of sale and purchase with different parties, and the transactions were settled by handing over delivery orders. There is no evidence that actual delivery of the goods was evereffected either to the assessee or to subsequent purchasers from him. All that passed were the delivery orders and payment by cheque. The High Court has taken the view that in the absence of actual delivery the transactions attracted Explanation 2 to S.24 (1) and must be regarded as "speculative transactions." It seems to us that the High Court is right, having regard to the law laid down by this Court in Devenport and Co. Pvt. Ltd. v. Commr. of Income tax, West Bengal, (1975) 100 ITR 715 But that decision has been overruled by this Court in Davenport and Co. P. Ltd. (supra), and in any event no question of invoking that decision arises because in the present case there has never been any suggestion that actual delivery of goods was ultimately effected. The case o the assessee throughout has been that handing over of the delivery orders was sufficient as constituting actual delivery of the goods. | 0 | 511 | 221 | ### 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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R. S. Pathak, J. 1. This appeal by certificate under S.66A(2) of the Indian Income tax Act, 1922 relates to the application of Explanation. 2 to S.24 (1) of the Indian Income tax Act. 2. The assessee deals in paper, hessian and B. Twill. After assessment by the Income Tax Officer for the assessment year 1955-56, and thereafter an appeal disposed of by the Appellate Assistant Commissioner, the Income Tax Appellate Tribunal in second appeal found that certain transaction entered into by the assessee could not be described as "speculative transactions" within the meaning of Explanation 2 to S.24 (1) of the Indian Income tax Act, 1922 and allowing the appeal it directed that the loss suffered by the assessee should be set off under S.24 (1) of the Act. At the instance of the Revenue, the Appellate Tribunal referred the following question to the High Court at Calcutta for its opinion :-"Whether, on the facts and in the circumstances of the case, the loss of Rs. 1,03,688/- was the result of speculative transactions within the meaning of Explanation 2 to S.24 (1) of the Indian Income tax Act, 1922, and therefore, was not allowable to be set off under S.24 (1) of the said Act?" The High Court has answered the question in favour of the revenue. 3. It appears the assessee entered into several transactions of sale and purchase with different parties, and the transactions were settled by handing over delivery orders. There is no evidence that actual delivery of the goods was evereffected either to the assessee or to subsequent purchasers from him. All that passed were the delivery orders and payment by cheque. The High Court has taken the view that in the absence of actual delivery the transactions attracted Explanation 2 to S.24 (1) and must be regarded as "speculative transactions." It seems to us that the High Court is right, having regard to the law laid down by this Court in Devenport and Co. Pvt. Ltd. v. Commr. of Income tax, West Bengal, (1975) 100 ITR 715 . It is urged on behalf of the assessee that the case falls under Raghunath Prasad Poddar v. Commr. of Income tax, Calcutta (1973) 90 ITR 140 (SC). But that decision has been overruled by this Court in Davenport and Co. P. Ltd. (supra), and in any event no question of invoking that decision arises because in the present case there has never been any suggestion that actual delivery of goods was ultimately effected. The case o the assessee throughout has been that handing over of the delivery orders was sufficient as constituting actual delivery of the goods.
### Response:
0
### Explanation:
3. It appears the assessee entered into several transactions of sale and purchase with different parties, and the transactions were settled by handing over delivery orders. There is no evidence that actual delivery of the goods was evereffected either to the assessee or to subsequent purchasers from him. All that passed were the delivery orders and payment by cheque. The High Court has taken the view that in the absence of actual delivery the transactions attracted Explanation 2 to S.24 (1) and must be regarded as "speculative transactions." It seems to us that the High Court is right, having regard to the law laid down by this Court in Devenport and Co. Pvt. Ltd. v. Commr. of Income tax, West Bengal, (1975) 100 ITR 715 But that decision has been overruled by this Court in Davenport and Co. P. Ltd. (supra), and in any event no question of invoking that decision arises because in the present case there has never been any suggestion that actual delivery of goods was ultimately effected. The case o the assessee throughout has been that handing over of the delivery orders was sufficient as constituting actual delivery of the goods.
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Pandurang Chandrakant Mhatre & Others Vs. State of Maharashtra | and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so. 60. In what we have already discussed above, we see no merit in the plea of alibi set up by A-2. The plea of alibi set up by A-2 was not even accepted by the trial court. The presence of A-2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of A-2 in the incident. On the basis of the deposition of some of the eye-witnesses, the evidence of DW-1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In cross-examination, DW- 1 admitted that there was no supervisor at night on that date. Insofar as, document Article-8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by A-2 much less proved. 61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen. 62. On behalf of appellant no. 8 (A-12), it was contended that site plan of the scene of offence could not have been accepted as PW-1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all been cross-examined in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case. 63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence of eye-witnesses by the trial court when it observed : ".........All the witnesses deposed that they were lying or chit-chatting or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this shows that the prosecution witnesses must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to tell specifically who actually assaulted him unless he sees from a very short or negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons." 64. With regard to evidence of PW-3 and PW-6, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper. 65. The least that can be said is that the whole approach of the trial court in consideration of the evidence of eye-witnesses was faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits. | 1[ds]58. Having carefully examined the testimony of, we find that prosecution has been able to establish that party of assailants comprised of more than five persons and that they formed unlawful assembly. It is also seen from the evidence that at least five persons chased the deceased and then attacked him. These members of the unlawful assembly who chased and attacked the deceased definitely shared common object of causing murder of Suresh Atmaram Gharat.1 had died during pendency of the appeal before High Court and, therefore, nothing further needs to be said about his role59. The High Court in para 36 of its judgment observed that common object of the said unlawful assembly was to cause grievous hurt. A little later in para 37, the High Court held that common object of the unlawful assembly was to make murderous attack on the deceased. At first blush, there seems to be some inconsistency in the judgment but on a deeper scrutiny, we find that it is not so. It isn that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident. The accused persons (nineteen in number) armed with deadly weapons came to the scene of occurrence sharing the common object of causing grievous hurt to the victim party. A closer scrutiny of evidence shows that1 and2 assaulted the prosecution witnessessome of them sustained grievous injuriesand the deceased. However, when the deceased and prosecution witnesses ran helter and skelter, at least five members of the unlawful assembly chased the deceased and they attacked him with the weapons in their hand. The purpose and design of these members of unlawful assembly in chasing Suresh Atmaram Gharat and a murderous assault by them on him may not have been shared by other members of unlawful assembly. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only, and2 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved.0 and1 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so60. In what we have already discussed above, we see no merit in the plea of alibi set up by. The plea of alibi set up by2 was not even accepted by the trial court. The presence of2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of2 in the incident. On the basis of the deposition of some of the, the evidence of1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In, DW1 admitted that there was no supervisor at night on that date. Insofar as, document8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by2 much less proved61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen62. On behalf of appellant no. 8, it was contended that site plan of the scene of offence could not have been accepted as1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all beend in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence ofeyewitnessesby the trial court when it observed :".........All the witnesses deposed that they were lying org or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this shows that the prosecution witnesses must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to tell specifically who actually assaulted him unless he sees from a very short or negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons."64. With regard to evidence of3 and, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper65. The least that can be said is that the whole approach of the trial court in consideration of the evidence ofeyewitnesseswas faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits. | 1 | 12,227 | 1,526 | ### 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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and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so. 60. In what we have already discussed above, we see no merit in the plea of alibi set up by A-2. The plea of alibi set up by A-2 was not even accepted by the trial court. The presence of A-2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of A-2 in the incident. On the basis of the deposition of some of the eye-witnesses, the evidence of DW-1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In cross-examination, DW- 1 admitted that there was no supervisor at night on that date. Insofar as, document Article-8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by A-2 much less proved. 61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen. 62. On behalf of appellant no. 8 (A-12), it was contended that site plan of the scene of offence could not have been accepted as PW-1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all been cross-examined in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case. 63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence of eye-witnesses by the trial court when it observed : ".........All the witnesses deposed that they were lying or chit-chatting or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this shows that the prosecution witnesses must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to tell specifically who actually assaulted him unless he sees from a very short or negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons." 64. With regard to evidence of PW-3 and PW-6, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper. 65. The least that can be said is that the whole approach of the trial court in consideration of the evidence of eye-witnesses was faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits.
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side of safety and convict only, and2 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved.0 and1 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so60. In what we have already discussed above, we see no merit in the plea of alibi set up by. The plea of alibi set up by2 was not even accepted by the trial court. The presence of2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of2 in the incident. On the basis of the deposition of some of the, the evidence of1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In, DW1 admitted that there was no supervisor at night on that date. Insofar as, document8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by2 much less proved61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen62. On behalf of appellant no. 8, it was contended that site plan of the scene of offence could not have been accepted as1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all beend in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence ofeyewitnessesby the trial court when it observed :".........All the witnesses deposed that they were lying org or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this shows that the prosecution witnesses must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to tell specifically who actually assaulted him unless he sees from a very short or negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons."64. With regard to evidence of3 and, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper65. The least that can be said is that the whole approach of the trial court in consideration of the evidence ofeyewitnesseswas faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits.
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Chief Commissioner, Delhi & Anr Vs. Delhi Cloth And General Mills Co. Ltd. & Ors | FAZAL ALI, J. 1. This appeal by certificate is directed against the judgment and order of the Circuit Bench of the Punjab High Court at Delhi dated the 7th May, 1964, and arises in the following circumstances: The respondent company floated debenture loan of Rs. 2.50 crores and to secure the repayment of the said loan, executed debenture trust deed dated 10th April, 1962, mortgaging certain properties of the company for consideration of Rs. 2.50 crores in favour of the trustees who were petitioners before the High Court. Further details have been given in the judgment of the High Court and it is not necessary to repeat them here. It appears that stamps to the extent of Rs. 2, 50, 300 were paid under the Indian Stamp Act and, apart from that, when the document was presented for registration, a registration fee of Rs. 1, 25, 157.50 were demanded for registration by the Sub-Registrar under a notification issued by the Chief Commissioner of Delhi, which is the impugned notification in this case. The registration fee was paid by the respondents under compulsion but the trustees filed a petition in the High Court challenging the validity of the notification and the exorbitant amount realised as registration fee. 2. The short point taken before the High Court by the respondents was that the registration fee levied under the notification dated 15th December, 1952, was an illegal levy as it did not fulfil the essential conditions of a fee within the meaning of the Constitution. The plea of the trustees found favour with the High Court which held that the fee charged by the Registration department under the notification was an illegal impost and could not be levied. The High Court accordingly quashed the notification and directed refund of the fee. 3. The main point which arises for consideration in this case is as to whether or not the fee charged under the notification issued by the Chief Commissioner was a legal impost justified by the provisions of the Constitution. It is well settled that a fee, in order to be a legal fee, must satisfy two conditions :"(i) there must be an element of quid pro quo, that is to say, the authority levying the fee must render some service for the fee levied, however remote the service may be ; (ii) that the fee realised must be spent for the purposes of the imposition and should not form part of the general revenues of the State." 4. In the instant case, it was not disputed before the High Court that the fee realised by the Registration department under the notification above mentioned was to form part of the general revenues of the State. It is, therefore, manifest that the second element of a fee was wholly wanting in this case and the High Court was, therefore, right in striking down the notification. Mr. Bhatt, appearing in support of the appeal, submitted that by virtue of the fact that the document was registered, the respondents obtained initial advantage in using the document as an authentic piece of evidence and as proof of title and this was, therefore, a sufficient service rendered for the imposition of the fee. Even assuming that this was so, the second essential ingredient of a valid fee, viz., that the fee realised must be co-related with expenditure incurred on registration so as to be spent on maintenance of registration organisation, was not satisfied in this case and on this ground alone the fee could not be imposed. In Mahant Sri Jagannath Ramanuj Das v. State of Orissa [1954] SCR 1046 , 1053 (SC), this court observed as follows :" Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes. " 5. The same view was reiterated in Ratilal Panachand Gandhi v. State of Bombay [1954] SCR 1055 (SC). In a recent decision of this court in the case of State of Maharashtra v. Salvation Army, Western India Territory [1975] 3 SCR 475 ; AIR 1975 SC 846 , 851, this court observed as follows :" Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and, in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. " 6. In view of the long course of decisions of this court, the view taken by the High Court was absolutely correct and we are unable to find any error of law. We understand that the notification has now been amended and a maximum fee of Rs. 100 has been fixed. Thus, the point becomes more or less academic except for cases pending during a particular period. 7. | 0[ds]In the instant case, it was not disputed before the High Court that the fee realised by the Registration department under the notification above mentioned was to form part of the general revenues of the State. It is, therefore, manifest that the second element of a fee was wholly wanting in this case and the High Court was, therefore, right in striking down the notification. Mr. Bhatt, appearing in support of the appeal, submitted that by virtue of the fact that the document was registered, the respondents obtained initial advantage in using the document as an authentic piece of evidence and as proof of title and this was, therefore, a sufficient service rendered for the imposition of the fee. Even assuming that this was so, the second essential ingredient of a valid fee, viz., that the fee realised must be co-related with expenditure incurred on registration so as to be spent on maintenance of registration organisation, was not satisfied in this case and on this ground alone the fee could not be imposed. In Mahant Sri Jagannath Ramanuj Das v. State of Orissa [1954] SCR 1046 , 1053 (SC), this court observed as follows :" Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.e same view was reiterated in Ratilal Panachand Gandhi v. State of Bombay [1954] SCR 1055 (SC)In a recent decision of this court in the case of State of Maharashtra v. Salvation Army, Western India Territory [1975] 3 SCR 475 ; AIR 1975 SC 846 , 851, this court observed as follows :" Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and, in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. "In view of the long course of decisions of this court, the view taken by the High Court was absolutely correct and we are unable to find any error of law. We understand that the notification has now been amended and a maximum fee of Rs. 100 has been fixed. Thus, the point becomes more or less academic except for cases pending during a particular periodthere must be an element of quid pro quo, that is to say, the authority levying the fee must render some service for the fee levied, however remote the service may be ;(ii) that the fee realised must be spent for the purposes of the imposition and should not form part of the general revenues of the | 0 | 995 | 589 | ### 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:
FAZAL ALI, J. 1. This appeal by certificate is directed against the judgment and order of the Circuit Bench of the Punjab High Court at Delhi dated the 7th May, 1964, and arises in the following circumstances: The respondent company floated debenture loan of Rs. 2.50 crores and to secure the repayment of the said loan, executed debenture trust deed dated 10th April, 1962, mortgaging certain properties of the company for consideration of Rs. 2.50 crores in favour of the trustees who were petitioners before the High Court. Further details have been given in the judgment of the High Court and it is not necessary to repeat them here. It appears that stamps to the extent of Rs. 2, 50, 300 were paid under the Indian Stamp Act and, apart from that, when the document was presented for registration, a registration fee of Rs. 1, 25, 157.50 were demanded for registration by the Sub-Registrar under a notification issued by the Chief Commissioner of Delhi, which is the impugned notification in this case. The registration fee was paid by the respondents under compulsion but the trustees filed a petition in the High Court challenging the validity of the notification and the exorbitant amount realised as registration fee. 2. The short point taken before the High Court by the respondents was that the registration fee levied under the notification dated 15th December, 1952, was an illegal levy as it did not fulfil the essential conditions of a fee within the meaning of the Constitution. The plea of the trustees found favour with the High Court which held that the fee charged by the Registration department under the notification was an illegal impost and could not be levied. The High Court accordingly quashed the notification and directed refund of the fee. 3. The main point which arises for consideration in this case is as to whether or not the fee charged under the notification issued by the Chief Commissioner was a legal impost justified by the provisions of the Constitution. It is well settled that a fee, in order to be a legal fee, must satisfy two conditions :"(i) there must be an element of quid pro quo, that is to say, the authority levying the fee must render some service for the fee levied, however remote the service may be ; (ii) that the fee realised must be spent for the purposes of the imposition and should not form part of the general revenues of the State." 4. In the instant case, it was not disputed before the High Court that the fee realised by the Registration department under the notification above mentioned was to form part of the general revenues of the State. It is, therefore, manifest that the second element of a fee was wholly wanting in this case and the High Court was, therefore, right in striking down the notification. Mr. Bhatt, appearing in support of the appeal, submitted that by virtue of the fact that the document was registered, the respondents obtained initial advantage in using the document as an authentic piece of evidence and as proof of title and this was, therefore, a sufficient service rendered for the imposition of the fee. Even assuming that this was so, the second essential ingredient of a valid fee, viz., that the fee realised must be co-related with expenditure incurred on registration so as to be spent on maintenance of registration organisation, was not satisfied in this case and on this ground alone the fee could not be imposed. In Mahant Sri Jagannath Ramanuj Das v. State of Orissa [1954] SCR 1046 , 1053 (SC), this court observed as follows :" Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes. " 5. The same view was reiterated in Ratilal Panachand Gandhi v. State of Bombay [1954] SCR 1055 (SC). In a recent decision of this court in the case of State of Maharashtra v. Salvation Army, Western India Territory [1975] 3 SCR 475 ; AIR 1975 SC 846 , 851, this court observed as follows :" Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and, in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. " 6. In view of the long course of decisions of this court, the view taken by the High Court was absolutely correct and we are unable to find any error of law. We understand that the notification has now been amended and a maximum fee of Rs. 100 has been fixed. Thus, the point becomes more or less academic except for cases pending during a particular period. 7.
### Response:
0
### Explanation:
In the instant case, it was not disputed before the High Court that the fee realised by the Registration department under the notification above mentioned was to form part of the general revenues of the State. It is, therefore, manifest that the second element of a fee was wholly wanting in this case and the High Court was, therefore, right in striking down the notification. Mr. Bhatt, appearing in support of the appeal, submitted that by virtue of the fact that the document was registered, the respondents obtained initial advantage in using the document as an authentic piece of evidence and as proof of title and this was, therefore, a sufficient service rendered for the imposition of the fee. Even assuming that this was so, the second essential ingredient of a valid fee, viz., that the fee realised must be co-related with expenditure incurred on registration so as to be spent on maintenance of registration organisation, was not satisfied in this case and on this ground alone the fee could not be imposed. In Mahant Sri Jagannath Ramanuj Das v. State of Orissa [1954] SCR 1046 , 1053 (SC), this court observed as follows :" Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.e same view was reiterated in Ratilal Panachand Gandhi v. State of Bombay [1954] SCR 1055 (SC)In a recent decision of this court in the case of State of Maharashtra v. Salvation Army, Western India Territory [1975] 3 SCR 475 ; AIR 1975 SC 846 , 851, this court observed as follows :" Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and, in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. "In view of the long course of decisions of this court, the view taken by the High Court was absolutely correct and we are unable to find any error of law. We understand that the notification has now been amended and a maximum fee of Rs. 100 has been fixed. Thus, the point becomes more or less academic except for cases pending during a particular periodthere must be an element of quid pro quo, that is to say, the authority levying the fee must render some service for the fee levied, however remote the service may be ;(ii) that the fee realised must be spent for the purposes of the imposition and should not form part of the general revenues of the
|
G.Ravindranath @ R.Chowdary Vs. E.Srinivas | Now I am maintained by my parents, and due to the above accident my life has become dejected.? In cross-examination, the counsel appearing for respondent No.2 did make laboured attempt to discredit the testimony of the appellant but he firmly withstood his ground and reiterated the facts relating to accident, his injuries, pain and suffering and the expenses incurred under various heads. It is quite interesting to note that the appellant was not cross-examined on the issue of his educational qualification and the assistance provided by him to his father in doing agriculture. Therefore, that part of the testimony also remained unshaken. PW-2 - Dr. P.V.L.N. Murthy, Professor of Urology and H.O.D. of Urogoly, NIMS gave detailed description of the nature of injuries and the treatment given to the appellant in the following words: ?On 1-11-2000 the patient was admitted on emergency ward under the care of emergency Medical department or the poetics ward/Urology. An initial emergency treatment was given and discharged on 3.11.2000 with advise to review in urology O.P and Ortho O.P after three weeks. By the time he was admitted here he was with a SPC through which Urine was collected by a bag/ he was unable to pass urine via natural passage. The patient was admitted back on 27.1.2001 as per advise and we discharged him on 31-1-2001. During his admission he was treated for infection & fever (U.T.L.) and special X-ray procedures (R.G.U 85 M.C.U) were conducted to evaluate the stricture. The length of the stricture evaluate the strictures. The length of the stricture was 3 to 4 centimeters and urinary passage was blocked completely. By history of the patient it was know that he was suffering from erectile dysfunction be cause of injury (Trauma). He was admitted on 21-3-2001 and operated for the Traumatic stricture Urethra, he under went transpubic urithroplasty. The stricture length was 3 to 4 centimeters and there was extensive callous which was removed. Postoperatively patient had wound infection which was treated. After removing the Unwarily Catheter / Cystoscopy was performed and adhesions and granucalation tissue were removed and catheter reinstated. He was discharged on 21.4.2001 to review back in urology O.P. after one week for cathetal removal. After cathetral removal patient passed urine and readmitted on 16-5-2001 for the management of recurrence of the stricture. He under went VIU (Visual Internal Urithrotonomy) endoscopic operation for the recurrence of tine stricture. He was discharged on 23-5-2001 for the removal of the Urothril cathotic. He was called back to O.P. and catheter was removed, and he passed urine satisfactorily. He was re-admitted on 11-6-2001 for narrowing of the urinary stream die to recurrence of the stricture. He under went endoscope report operation (VIU) and advised him to perform self dilatation. AS the nature of the injury is severe the results of the primary operation (Urithroplast) was explained to the patient required multiple operations and continuous fallow at periodical intervals because the initial trauma was severe and the results of operation will not be satisfactory in this type of injuries. Patient developed ere tile dysfunction following trauma. This could be due to impairment in blood supply or nerve supply to the penis. Ex. P. 5 which was already marked is the cut patient record shows about the regular and periodical visit and follow-up. Whenever a procedure was under taken he was advised to take medicines for two to three weeks. Most of the visits he was accompanied with his father. Totally there are 13 X-rays which were already marked as Ex. P-10 are pertaining to pelvic fracture and traumatic stricture of the Urethra. Some of the X-rays are related to post operation condition. How I see already marked Ex. P-ll which is the outpatient card dt. 11-12-2002 containing past operative follow-up after one year of self dilatation and erectile disjunction. Patient was passed urine satisfactorily with self dilatation. His urine flow rate was peak flow 31.3 average flow 16.3. He complained absence of nocturnal erections since the accident there was minimum tuniscence after sexual arosal. Regiscan and Papavarin (PIPE) were advised to evaluate erectile dysfunction at an endrology centre. xxx xxx xxx For erectile disjunction he might retire if he is willing prosthetic penile implantation which is an artificial erection. It is an expensive operation and fraught with complications.? In cross-examination, nothing could be elicited by Dr.P.V.L.N.Murthy which may cast doubt on his testimony regarding the nature of injuries and treatment given to the appellant by NIMS. PW-3 ? Dr. V.Krishnammurty, Andrologist and Microsurgeon described the test conducted on the appellant. He denied the suggestion that the certificates Exhibits P-13 to P-16 and Exhibits P-16 (a) to (c) were false.From the testimony of three witnesses, it is established that as a result of accident the appellant had suffered grievous injuries in the pelvic region and he has become impotent. It is also established that he has already undergone multiple surgeries and will have to take treatment in institutes like NIMS for at least 10 years.Unfortunately, the Motor Accident Claims Tribunal, Raichur did not give due weightage to the evidence produced by the appellant and awarded meager compensation and that too by overlooking the documentary evidence produced by the appellant regarding the expenses incurred by him at Bhandari Hospital, Raichur and NIMS at Hyderabad. The High Court also failed to properly analyse and evaluate the evidence produced by the appellant and did not adequately enhanced the compensation determined by the Tribunal. In our view, the appellant is entitled to Rs.2,20,000/- towards the expenses incurred in the treatment including hospitalization charges, mess and lodging charges, transportation, etc. For future medical expenses including hospitalization, medicines, attendant charges, etc., the appellant is entitled to Rs.6 lakhs. For pain, suffering and trauma, the appellant is entitled to a sum of Rs.3 lakhs. For loss of amenities and prospects of marriage, the appellant is entitled to Rs.4 lakhs. For loss of expectation of life and loss of future earning, the appellant is entitled to a sum of Rs.5 lakhs. | 1[ds], nothing could be elicited by Dr.P.V.L.N.Murthy which may cast doubt on his testimony regarding the nature of injuries and treatment given to the appellant byr. V.Krishnammurty, Andrologist and Microsurgeon described the test conducted on the appellant. He denied the suggestion that the certificates Exhibits16 and Exhibits(a) to (c) were false.From the testimony of three witnesses, it is established that as a result of accident the appellant had suffered grievous injuries in the pelvic region and he has become impotent. It is also established that he has already undergone multiple surgeries and will have to take treatment in institutes like NIMS for at least 10 years.Unfortunately, the Motor Accident Claims Tribunal, Raichur did not give due weightage to the evidence produced by the appellant and awarded meager compensation and that too by overlooking the documentary evidence produced by the appellant regarding the expenses incurred by him at Bhandari Hospital, Raichur and NIMS at Hyderabad. The High Court also failed to properly analyse and evaluate the evidence produced by the appellant and did not adequately enhanced the compensation determined by the Tribunal. | 1 | 5,176 | 200 | ### 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:
Now I am maintained by my parents, and due to the above accident my life has become dejected.? In cross-examination, the counsel appearing for respondent No.2 did make laboured attempt to discredit the testimony of the appellant but he firmly withstood his ground and reiterated the facts relating to accident, his injuries, pain and suffering and the expenses incurred under various heads. It is quite interesting to note that the appellant was not cross-examined on the issue of his educational qualification and the assistance provided by him to his father in doing agriculture. Therefore, that part of the testimony also remained unshaken. PW-2 - Dr. P.V.L.N. Murthy, Professor of Urology and H.O.D. of Urogoly, NIMS gave detailed description of the nature of injuries and the treatment given to the appellant in the following words: ?On 1-11-2000 the patient was admitted on emergency ward under the care of emergency Medical department or the poetics ward/Urology. An initial emergency treatment was given and discharged on 3.11.2000 with advise to review in urology O.P and Ortho O.P after three weeks. By the time he was admitted here he was with a SPC through which Urine was collected by a bag/ he was unable to pass urine via natural passage. The patient was admitted back on 27.1.2001 as per advise and we discharged him on 31-1-2001. During his admission he was treated for infection & fever (U.T.L.) and special X-ray procedures (R.G.U 85 M.C.U) were conducted to evaluate the stricture. The length of the stricture evaluate the strictures. The length of the stricture was 3 to 4 centimeters and urinary passage was blocked completely. By history of the patient it was know that he was suffering from erectile dysfunction be cause of injury (Trauma). He was admitted on 21-3-2001 and operated for the Traumatic stricture Urethra, he under went transpubic urithroplasty. The stricture length was 3 to 4 centimeters and there was extensive callous which was removed. Postoperatively patient had wound infection which was treated. After removing the Unwarily Catheter / Cystoscopy was performed and adhesions and granucalation tissue were removed and catheter reinstated. He was discharged on 21.4.2001 to review back in urology O.P. after one week for cathetal removal. After cathetral removal patient passed urine and readmitted on 16-5-2001 for the management of recurrence of the stricture. He under went VIU (Visual Internal Urithrotonomy) endoscopic operation for the recurrence of tine stricture. He was discharged on 23-5-2001 for the removal of the Urothril cathotic. He was called back to O.P. and catheter was removed, and he passed urine satisfactorily. He was re-admitted on 11-6-2001 for narrowing of the urinary stream die to recurrence of the stricture. He under went endoscope report operation (VIU) and advised him to perform self dilatation. AS the nature of the injury is severe the results of the primary operation (Urithroplast) was explained to the patient required multiple operations and continuous fallow at periodical intervals because the initial trauma was severe and the results of operation will not be satisfactory in this type of injuries. Patient developed ere tile dysfunction following trauma. This could be due to impairment in blood supply or nerve supply to the penis. Ex. P. 5 which was already marked is the cut patient record shows about the regular and periodical visit and follow-up. Whenever a procedure was under taken he was advised to take medicines for two to three weeks. Most of the visits he was accompanied with his father. Totally there are 13 X-rays which were already marked as Ex. P-10 are pertaining to pelvic fracture and traumatic stricture of the Urethra. Some of the X-rays are related to post operation condition. How I see already marked Ex. P-ll which is the outpatient card dt. 11-12-2002 containing past operative follow-up after one year of self dilatation and erectile disjunction. Patient was passed urine satisfactorily with self dilatation. His urine flow rate was peak flow 31.3 average flow 16.3. He complained absence of nocturnal erections since the accident there was minimum tuniscence after sexual arosal. Regiscan and Papavarin (PIPE) were advised to evaluate erectile dysfunction at an endrology centre. xxx xxx xxx For erectile disjunction he might retire if he is willing prosthetic penile implantation which is an artificial erection. It is an expensive operation and fraught with complications.? In cross-examination, nothing could be elicited by Dr.P.V.L.N.Murthy which may cast doubt on his testimony regarding the nature of injuries and treatment given to the appellant by NIMS. PW-3 ? Dr. V.Krishnammurty, Andrologist and Microsurgeon described the test conducted on the appellant. He denied the suggestion that the certificates Exhibits P-13 to P-16 and Exhibits P-16 (a) to (c) were false.From the testimony of three witnesses, it is established that as a result of accident the appellant had suffered grievous injuries in the pelvic region and he has become impotent. It is also established that he has already undergone multiple surgeries and will have to take treatment in institutes like NIMS for at least 10 years.Unfortunately, the Motor Accident Claims Tribunal, Raichur did not give due weightage to the evidence produced by the appellant and awarded meager compensation and that too by overlooking the documentary evidence produced by the appellant regarding the expenses incurred by him at Bhandari Hospital, Raichur and NIMS at Hyderabad. The High Court also failed to properly analyse and evaluate the evidence produced by the appellant and did not adequately enhanced the compensation determined by the Tribunal. In our view, the appellant is entitled to Rs.2,20,000/- towards the expenses incurred in the treatment including hospitalization charges, mess and lodging charges, transportation, etc. For future medical expenses including hospitalization, medicines, attendant charges, etc., the appellant is entitled to Rs.6 lakhs. For pain, suffering and trauma, the appellant is entitled to a sum of Rs.3 lakhs. For loss of amenities and prospects of marriage, the appellant is entitled to Rs.4 lakhs. For loss of expectation of life and loss of future earning, the appellant is entitled to a sum of Rs.5 lakhs.
### Response:
1
### Explanation:
, nothing could be elicited by Dr.P.V.L.N.Murthy which may cast doubt on his testimony regarding the nature of injuries and treatment given to the appellant byr. V.Krishnammurty, Andrologist and Microsurgeon described the test conducted on the appellant. He denied the suggestion that the certificates Exhibits16 and Exhibits(a) to (c) were false.From the testimony of three witnesses, it is established that as a result of accident the appellant had suffered grievous injuries in the pelvic region and he has become impotent. It is also established that he has already undergone multiple surgeries and will have to take treatment in institutes like NIMS for at least 10 years.Unfortunately, the Motor Accident Claims Tribunal, Raichur did not give due weightage to the evidence produced by the appellant and awarded meager compensation and that too by overlooking the documentary evidence produced by the appellant regarding the expenses incurred by him at Bhandari Hospital, Raichur and NIMS at Hyderabad. The High Court also failed to properly analyse and evaluate the evidence produced by the appellant and did not adequately enhanced the compensation determined by the Tribunal.
|
Shree Hanuman Cotton Mills & Ors Vs. Tata Air-Craft Ltd | plaintiff therein was entitled to forfeit a sum of Rs.1,000/- paid as earnest money on default committed by the buyer; and (ii) whether the plaintiff was further entitled to forfeit the entire sum of Rs.24,000/- paid by the buyer under the contract which recognised such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs.1,000/- paid as earnest money, when default was committed by the buyer. But, regarding the second item of Rs.24,000/- this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under section 74 of the Contract Act. In view of this conclusion the Court further had to consider the relief that the plaintiff had to get when breach of contract was committed by the buyer and, in dealing with this question, it observed at p. 526, (of SCR) = (at p. 1411 of AIR):"Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by S. 74 reasonable compensation not exceeding the penalty stipulated for".Again, at p. 528 (of SCR) = (at p. 1411 of AIR) it observed:"In our judgment the expression "the contract contains any other stipulation by way of penalty" comprehensively applies to every covenant involving a penalty whether it is for payment on breach of contract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty not to enforce the penalty clause but only to award reasonable compensation is statutorily imposed upon courts by S. 74. In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfeiture, the court has jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract as liable to forfeiture."The Court further observed at p. 529 (of SCR) = (at p. 1412 of AIR) :"There is no ground for holding that the expression "contract contains any other stipulation by way of penalty" is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeited.Section 74 declares the law as to liability upon breach of contract where compensation is by agreement of the parties predetermined, or where there is a stipulation by way of penalty. But the application of the enactment is not restricted to cases where the aggrieved party claims relief as a plaintiff. The section does not confer a special benefit upon any party; it merely declares the law that notwithstanding any term in the contract predetermining damages or providing for forfeiture of any property by way of penalty, the court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty stipulated. The jurisdiction of the court is not determined by the accidental circumstances of the party in default being a plaintiff or a defendant in a suit. Use of the expression "to receive from the party who has broken the contract" of the court to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party complaining of breach of contract."This Court applied S. 74 of the Contract Act and ultimately fixed a particular amount which the plaintiff would be entitled to as reasonable compensation in the circumstances.36. Mr. Maheshwari placed considerable reliance on the above extracts in support of his contention and urged that the recitals regarding forfeiture of the amount of Rs.2,50,000/- shows that the contract contains a stipulation by way of penalty and therefore section 74 is attracted. It is not possible to accept this contention. As we have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was not, admittedly, earnest money, S. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does not apply.37. Mr. Maheshwari finally urged that S. 64 of the Contract Act may apply and he has also relied on the decision of the Judicial Committee in Murlidhar Chatterjee v. International Film Co. 70 Ind App 35 = (AIR 1943 PC 34). On the basis of that ruling he urged that the respondents are bound to restore the benefit that they have obtained under the contract. In our opinion there is no scope for applying S. 64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with S. 64, has no relevance.38. We have already pointed out that the appellants raised a contention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the appellants had proceeded on that basis, then the contract would have been voidable at their instance under S. 19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of contract was committed by them. Hence S. 64 cannot be invoked by the appellants.39. In this view, the second contention also fails. | 0[ds]24. From a review of the decisions cited above, the following principles emerge regardingmust be given at the moment at which the contract is concluded.(2)It represents a guarantee that the contract will be fulfilled or, in other words, "earnest" is given to bind the contract.(3)It is part of the purchase price when the transaction is carried out.(4)It is forfeited when the transaction falls through by reason of the default or failure of the purchaser.(5)Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit thethis contention ignores the last recital in the said letter wherein it has been specifically stated that the terms of business of the respondent company applied to the contract. This condition has also been accepted by the appellants in their reply, dated November 18, 1946. Therefore the position is this, that the terms of business of the respondent company have been incorporated as part of the letter and has been embodied in the terms of contract between the parties. Clause 9, to which we have already referred, clearly shows that 25 per cent of the total value is to be deposited and that amount is to remain with the respondents as earnest money. It is again emphasized in clause 9 that the amount so deposited as earnest will not bear any interest, but will be only adjusted in the final bills. Therefore the amount of Rs.2,50,000 deposited by the appellants, representing 25 per cent of the total of Rs.10,00,000, is "earnest money" under clause 9 of the Terms ofIn our opinion the learned Attorney-General is well founded in his contention that the appellants raised no such contentions covered by the second point, noted above. It is therefore unnecessary for us to go into the question as to whether the amount deposited by the appellants, in this case, by way of earnest and forfeited as such, can be considered to be reasonable or not.We express no opinion on the question as to whether the element of unreasonableness can ever be considered regarding the forfeiture of an amount deposited by way of earnest and if so what are the necessary factors to be taken into account in considering the reasonableness or otherwise of the amount deposited by way of earnest.If the appellants were contesting the claim on any such grounds, they should have laid the foundation for the same by raising appropriate pleas and also led proper evidence regarding the same, so that the respondents would have had an opportunity of meeting such a claim.We are not inclined to accept this contention of the learned counsel. This Court had to consider, in the said decision, two questions; (i) whether the plaintiff therein was entitled to forfeit a sum of Rs.1,000/- paid as earnest money on default committed by the buyer; and (ii) whether the plaintiff was further entitled to forfeit the entire sum of Rs.24,000/- paid by the buyer under the contract which recognised such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs.1,000/- paid as earnest money, when default was committed by the buyer. But, regarding the second item of Rs.24,000/- this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under section 74 of the Contract Act. In view of this conclusion the Court further had to consider the relief that the plaintiff had to get when breach of contract was committed by thewe have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was not, admittedly, earnest money, S. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does notour opinion there is no scope for applying S. 64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with S. 64, has nohave already pointed out that the appellants raised a contention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the appellants had proceeded on that basis, then the contract would have been voidable at their instance under S. 19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of contract was committed by them. Hence S. 64 cannot be invoked by the appellants.39. In this view, the second contention also fails. | 0 | 9,016 | 873 | ### 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:
plaintiff therein was entitled to forfeit a sum of Rs.1,000/- paid as earnest money on default committed by the buyer; and (ii) whether the plaintiff was further entitled to forfeit the entire sum of Rs.24,000/- paid by the buyer under the contract which recognised such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs.1,000/- paid as earnest money, when default was committed by the buyer. But, regarding the second item of Rs.24,000/- this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under section 74 of the Contract Act. In view of this conclusion the Court further had to consider the relief that the plaintiff had to get when breach of contract was committed by the buyer and, in dealing with this question, it observed at p. 526, (of SCR) = (at p. 1411 of AIR):"Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by S. 74 reasonable compensation not exceeding the penalty stipulated for".Again, at p. 528 (of SCR) = (at p. 1411 of AIR) it observed:"In our judgment the expression "the contract contains any other stipulation by way of penalty" comprehensively applies to every covenant involving a penalty whether it is for payment on breach of contract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty not to enforce the penalty clause but only to award reasonable compensation is statutorily imposed upon courts by S. 74. In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfeiture, the court has jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract as liable to forfeiture."The Court further observed at p. 529 (of SCR) = (at p. 1412 of AIR) :"There is no ground for holding that the expression "contract contains any other stipulation by way of penalty" is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeited.Section 74 declares the law as to liability upon breach of contract where compensation is by agreement of the parties predetermined, or where there is a stipulation by way of penalty. But the application of the enactment is not restricted to cases where the aggrieved party claims relief as a plaintiff. The section does not confer a special benefit upon any party; it merely declares the law that notwithstanding any term in the contract predetermining damages or providing for forfeiture of any property by way of penalty, the court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty stipulated. The jurisdiction of the court is not determined by the accidental circumstances of the party in default being a plaintiff or a defendant in a suit. Use of the expression "to receive from the party who has broken the contract" of the court to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party complaining of breach of contract."This Court applied S. 74 of the Contract Act and ultimately fixed a particular amount which the plaintiff would be entitled to as reasonable compensation in the circumstances.36. Mr. Maheshwari placed considerable reliance on the above extracts in support of his contention and urged that the recitals regarding forfeiture of the amount of Rs.2,50,000/- shows that the contract contains a stipulation by way of penalty and therefore section 74 is attracted. It is not possible to accept this contention. As we have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was not, admittedly, earnest money, S. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does not apply.37. Mr. Maheshwari finally urged that S. 64 of the Contract Act may apply and he has also relied on the decision of the Judicial Committee in Murlidhar Chatterjee v. International Film Co. 70 Ind App 35 = (AIR 1943 PC 34). On the basis of that ruling he urged that the respondents are bound to restore the benefit that they have obtained under the contract. In our opinion there is no scope for applying S. 64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with S. 64, has no relevance.38. We have already pointed out that the appellants raised a contention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the appellants had proceeded on that basis, then the contract would have been voidable at their instance under S. 19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of contract was committed by them. Hence S. 64 cannot be invoked by the appellants.39. In this view, the second contention also fails.
### Response:
0
### Explanation:
24. From a review of the decisions cited above, the following principles emerge regardingmust be given at the moment at which the contract is concluded.(2)It represents a guarantee that the contract will be fulfilled or, in other words, "earnest" is given to bind the contract.(3)It is part of the purchase price when the transaction is carried out.(4)It is forfeited when the transaction falls through by reason of the default or failure of the purchaser.(5)Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit thethis contention ignores the last recital in the said letter wherein it has been specifically stated that the terms of business of the respondent company applied to the contract. This condition has also been accepted by the appellants in their reply, dated November 18, 1946. Therefore the position is this, that the terms of business of the respondent company have been incorporated as part of the letter and has been embodied in the terms of contract between the parties. Clause 9, to which we have already referred, clearly shows that 25 per cent of the total value is to be deposited and that amount is to remain with the respondents as earnest money. It is again emphasized in clause 9 that the amount so deposited as earnest will not bear any interest, but will be only adjusted in the final bills. Therefore the amount of Rs.2,50,000 deposited by the appellants, representing 25 per cent of the total of Rs.10,00,000, is "earnest money" under clause 9 of the Terms ofIn our opinion the learned Attorney-General is well founded in his contention that the appellants raised no such contentions covered by the second point, noted above. It is therefore unnecessary for us to go into the question as to whether the amount deposited by the appellants, in this case, by way of earnest and forfeited as such, can be considered to be reasonable or not.We express no opinion on the question as to whether the element of unreasonableness can ever be considered regarding the forfeiture of an amount deposited by way of earnest and if so what are the necessary factors to be taken into account in considering the reasonableness or otherwise of the amount deposited by way of earnest.If the appellants were contesting the claim on any such grounds, they should have laid the foundation for the same by raising appropriate pleas and also led proper evidence regarding the same, so that the respondents would have had an opportunity of meeting such a claim.We are not inclined to accept this contention of the learned counsel. This Court had to consider, in the said decision, two questions; (i) whether the plaintiff therein was entitled to forfeit a sum of Rs.1,000/- paid as earnest money on default committed by the buyer; and (ii) whether the plaintiff was further entitled to forfeit the entire sum of Rs.24,000/- paid by the buyer under the contract which recognised such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs.1,000/- paid as earnest money, when default was committed by the buyer. But, regarding the second item of Rs.24,000/- this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under section 74 of the Contract Act. In view of this conclusion the Court further had to consider the relief that the plaintiff had to get when breach of contract was committed by thewe have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was not, admittedly, earnest money, S. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does notour opinion there is no scope for applying S. 64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with S. 64, has nohave already pointed out that the appellants raised a contention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the appellants had proceeded on that basis, then the contract would have been voidable at their instance under S. 19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of contract was committed by them. Hence S. 64 cannot be invoked by the appellants.39. In this view, the second contention also fails.
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Precision Bearings India Ltd Vs. Baroda Mazdoor Sabha And Anr | in a; phased manner. Mr. Gokhale submits with some justification that this was purely a management function and the Tribunal should have taken the figures as furnished by the management in making reserve&for replacement costs. We have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore, can-not make any grievance about the manner in which the Tribunal has, dealt with this aspect. Mr. Garg, on behalf of the respondents, also drew our attention to paragraph 4 of the companys written statement (page 62, Volume 1) where after having referred to certain offers made by it the company was prepared to the "increase of about Rs. 15 lacs in the employee cost in the very first year. . . . . .We find that the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear the burden. The Tribunal finally observed as follows :-"On a careful consideration of all the relevant factors, in my opinion, the dearness allowance paid to the PBI (Precision Bearings India) workmen at the minimum level of basic pay from Rs. 26-upto Rs. 100-should be from 80 per cent, of the textile D.A. to 89 per cent, of the textile D.A. phased over a period of three years, The dearness allowance in the higher pay scale of R s. 101-to Rs. 200should be 40 per cent and. in the still higher slab of Rs. 201 and above, should be 20 per cent, the percentage for the higher two slabs remaining the same". The 40 per cent and 20 per cent of the basic wages in the higher slab s were in addition to the Ahmedabad Textile Dearness Allowance granted in the award. This takes us to the second objection of Mr. Gokhale. 6. It is submitted that in the charter of demands of the union there were two specific demands with regard to dearness allowance. These were as follows:-"1: 1. It is demanded that the existing minimum dearness allowance of Rs. 146/- should be modified and that all the workers including workers known as staff should be paid minimum dearness allowance at the rate of full dearness allowance that is being paid to Textile workers at Ahmedabad, i.e. 100% of Ahmedabad Textile rate.1: 2 With the above minimum dearness allowance the workers and workers known as staff should be further continued the higher dearness allowance as under- Below Rs. 1 00 pay-100% Ahmedabad Textile Dearness Allowance. Pay range between Rs. 100 to Rs. 200-100% Ahmedabad Textile DA+40% of basic Pay above Rs. 200/-100% Ahmedabad Textile DA+ 20% + of basic." 7. Even though the demand for dearness allowance was as above, the State Government referred the dispute only in the form set out at the outset. The Government did not entertain the claim of dearness allowance in addition to the 100% D.A. paid to the workers of the cotton textile mills at Ahmedabad. In other words, while the claim of the union was Ahmedabad Textile D.A. plus, the Government did not entertain the dispute between the parties in that form. We find great force in the above submission of Mr. Gokhale. The Tribunal in view of the content of the dispute referred to it had no jurisdiction in this reference to grant anything more then 100% of the Ahmedabad Textile D.A. on the outside. Since, the Tribunal after having given appropriate consideration to all aspects of the matter granted varying percentage from 80% to 89% phased in a particular way, it had virtually rejected the unions claim for 100% of the Textile D.A. Having done so, there was no scope for allowing to the higher brackets of wage earners in addition 40% and 20% of basic wages as dearness allowance. This part of the award is, therefore, beyond the scope, of the reference and must be quashed which we hereby do. If the Government at a future time intends to entertain a dispute of this nature with regard to higher brackets of wage earners that will be a different dispute but such a claim could not be entertained by the Tribunal in the present reference.We may observe that during the course of the proceedings before the Tribunal the clerical and the supervisory staff seem to have withdrawn from the reference and even an application was filed by some of them before the Tribunal to confine the dispute a s pertaining to the, manual and technical workers. The Tribunal however, did not accede to this request and proceeded on the footing that all the members of the-staff were included in the reference. 8. We should not be taken to suggest that the 4 0% and 20% plus is either wrong or excessive by way of high cost allowance. Indeed, we even felt that the lowest bracket upto Rs. 100/- needed full neutralisation of the rise in the cost of living as has been held in Killick Nixon Limited v. Killick &Allied Companies Employees Union. (1) Nor do we fail to see the force of Shri Gargs submission that social justice perspectives being integral to industrial jurisprudence. the high cost allowance as a component of D.A. is not impermissible in principle. It is a legitimate item. But we disallow because there is I deliberate omission to make a reference, of that item and so, falls outside the jurisdiction of the tribunal. That is why we have expressly observed that such a dispute may well be referred by Government, if it considers fit, and this decision will not bar such a course. 9. | 1[ds]We have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore, can-not make any grievance about the manner in which the Tribunal has, dealt with this aspect.Mr. Garg, on behalf of the respondents, also drew our attention to paragraph 4 of the companys written statement (page 62, Volume 1) where after having referred to certain offers made by it the company was prepared to the "increase of about Rs. 15 lacs in the employee cost in the very first year. . . . ..Wefind that the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear the burdenEven though the demand for dearness allowance was as above, the State Government referred the dispute only in the form set out at the outset. The Government did not entertain the claim of dearness allowance in addition to the 100% D.A. paid to the workers of the cotton textile mills at Ahmedabad. In other words, while the claim of the union was Ahmedabad Textile D.A. plus, the Government did not entertain the dispute between the parties in that form. We find great force in the above submission of Mr. Gokhale. The Tribunal in view of the content of the dispute referred to it had no jurisdiction in this reference to grant anything more then 100% of the Ahmedabad Textile D.A. on the outside. Since, the Tribunal after having given appropriate consideration to all aspects of the matter granted varying percentage from 80% to 89% phased in a particular way, it had virtually rejected the unions claim for 100% of the Textile D.A. Having done so, there was no scope for allowing to the higher brackets of wage earners in addition 40% and 20% of basic wages as dearness allowance. This part of the award is, therefore, beyond the scope, of the reference and must be quashed which we hereby do. If the Government at a future time intends to entertain a dispute of this nature with regard to higher brackets of wage earners that will be a different dispute but such a claim could not be entertained by the Tribunal in the presente mayobserve that during the course of the proceedings before the Tribunal the clerical and the supervisory staff seem to have withdrawn from the reference and even an application was filed by some of them before the Tribunal to confine the dispute a s pertaining to the, manual and technical workers. The Tribunal however, did not accede to this request and proceeded on the footing that all the members of the-staff were included in the referenceWe should not be taken to suggest that the 4 0% and 20% plus is either wrong or excessive by way of high cost allowance. Indeed, we even felt that the lowest bracket upto Rs. 100/- needed full neutralisation of the rise in the cost of living as has been held in Killick Nixon Limited v. Killick &Allied Companies Employees Union. (1) Nor do we fail to see the force of Shri Gargs submission that social justice perspectives being integral to industrial jurisprudence. the high cost allowance as a component of D.A. is not impermissible in principle. It is a legitimate item. But we disallow because there is I deliberate omission to make a reference, of that item and so, falls outside the jurisdiction of the tribunal. That is why we have expressly observed that such adisputemaywell be referred by Government, if it considers fit, and this decision will not bar such a courseWe have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore,t make any grievance about the manner in which the Tribunal has, dealt with this aspectWe findthat the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear theburden.The Tribunal finally observed as follows | 1 | 1,932 | 892 | ### 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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in a; phased manner. Mr. Gokhale submits with some justification that this was purely a management function and the Tribunal should have taken the figures as furnished by the management in making reserve&for replacement costs. We have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore, can-not make any grievance about the manner in which the Tribunal has, dealt with this aspect. Mr. Garg, on behalf of the respondents, also drew our attention to paragraph 4 of the companys written statement (page 62, Volume 1) where after having referred to certain offers made by it the company was prepared to the "increase of about Rs. 15 lacs in the employee cost in the very first year. . . . . .We find that the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear the burden. The Tribunal finally observed as follows :-"On a careful consideration of all the relevant factors, in my opinion, the dearness allowance paid to the PBI (Precision Bearings India) workmen at the minimum level of basic pay from Rs. 26-upto Rs. 100-should be from 80 per cent, of the textile D.A. to 89 per cent, of the textile D.A. phased over a period of three years, The dearness allowance in the higher pay scale of R s. 101-to Rs. 200should be 40 per cent and. in the still higher slab of Rs. 201 and above, should be 20 per cent, the percentage for the higher two slabs remaining the same". The 40 per cent and 20 per cent of the basic wages in the higher slab s were in addition to the Ahmedabad Textile Dearness Allowance granted in the award. This takes us to the second objection of Mr. Gokhale. 6. It is submitted that in the charter of demands of the union there were two specific demands with regard to dearness allowance. These were as follows:-"1: 1. It is demanded that the existing minimum dearness allowance of Rs. 146/- should be modified and that all the workers including workers known as staff should be paid minimum dearness allowance at the rate of full dearness allowance that is being paid to Textile workers at Ahmedabad, i.e. 100% of Ahmedabad Textile rate.1: 2 With the above minimum dearness allowance the workers and workers known as staff should be further continued the higher dearness allowance as under- Below Rs. 1 00 pay-100% Ahmedabad Textile Dearness Allowance. Pay range between Rs. 100 to Rs. 200-100% Ahmedabad Textile DA+40% of basic Pay above Rs. 200/-100% Ahmedabad Textile DA+ 20% + of basic." 7. Even though the demand for dearness allowance was as above, the State Government referred the dispute only in the form set out at the outset. The Government did not entertain the claim of dearness allowance in addition to the 100% D.A. paid to the workers of the cotton textile mills at Ahmedabad. In other words, while the claim of the union was Ahmedabad Textile D.A. plus, the Government did not entertain the dispute between the parties in that form. We find great force in the above submission of Mr. Gokhale. The Tribunal in view of the content of the dispute referred to it had no jurisdiction in this reference to grant anything more then 100% of the Ahmedabad Textile D.A. on the outside. Since, the Tribunal after having given appropriate consideration to all aspects of the matter granted varying percentage from 80% to 89% phased in a particular way, it had virtually rejected the unions claim for 100% of the Textile D.A. Having done so, there was no scope for allowing to the higher brackets of wage earners in addition 40% and 20% of basic wages as dearness allowance. This part of the award is, therefore, beyond the scope, of the reference and must be quashed which we hereby do. If the Government at a future time intends to entertain a dispute of this nature with regard to higher brackets of wage earners that will be a different dispute but such a claim could not be entertained by the Tribunal in the present reference.We may observe that during the course of the proceedings before the Tribunal the clerical and the supervisory staff seem to have withdrawn from the reference and even an application was filed by some of them before the Tribunal to confine the dispute a s pertaining to the, manual and technical workers. The Tribunal however, did not accede to this request and proceeded on the footing that all the members of the-staff were included in the reference. 8. We should not be taken to suggest that the 4 0% and 20% plus is either wrong or excessive by way of high cost allowance. Indeed, we even felt that the lowest bracket upto Rs. 100/- needed full neutralisation of the rise in the cost of living as has been held in Killick Nixon Limited v. Killick &Allied Companies Employees Union. (1) Nor do we fail to see the force of Shri Gargs submission that social justice perspectives being integral to industrial jurisprudence. the high cost allowance as a component of D.A. is not impermissible in principle. It is a legitimate item. But we disallow because there is I deliberate omission to make a reference, of that item and so, falls outside the jurisdiction of the tribunal. That is why we have expressly observed that such a dispute may well be referred by Government, if it considers fit, and this decision will not bar such a course. 9.
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We have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore, can-not make any grievance about the manner in which the Tribunal has, dealt with this aspect.Mr. Garg, on behalf of the respondents, also drew our attention to paragraph 4 of the companys written statement (page 62, Volume 1) where after having referred to certain offers made by it the company was prepared to the "increase of about Rs. 15 lacs in the employee cost in the very first year. . . . ..Wefind that the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear the burdenEven though the demand for dearness allowance was as above, the State Government referred the dispute only in the form set out at the outset. The Government did not entertain the claim of dearness allowance in addition to the 100% D.A. paid to the workers of the cotton textile mills at Ahmedabad. In other words, while the claim of the union was Ahmedabad Textile D.A. plus, the Government did not entertain the dispute between the parties in that form. We find great force in the above submission of Mr. Gokhale. The Tribunal in view of the content of the dispute referred to it had no jurisdiction in this reference to grant anything more then 100% of the Ahmedabad Textile D.A. on the outside. Since, the Tribunal after having given appropriate consideration to all aspects of the matter granted varying percentage from 80% to 89% phased in a particular way, it had virtually rejected the unions claim for 100% of the Textile D.A. Having done so, there was no scope for allowing to the higher brackets of wage earners in addition 40% and 20% of basic wages as dearness allowance. This part of the award is, therefore, beyond the scope, of the reference and must be quashed which we hereby do. If the Government at a future time intends to entertain a dispute of this nature with regard to higher brackets of wage earners that will be a different dispute but such a claim could not be entertained by the Tribunal in the presente mayobserve that during the course of the proceedings before the Tribunal the clerical and the supervisory staff seem to have withdrawn from the reference and even an application was filed by some of them before the Tribunal to confine the dispute a s pertaining to the, manual and technical workers. The Tribunal however, did not accede to this request and proceeded on the footing that all the members of the-staff were included in the referenceWe should not be taken to suggest that the 4 0% and 20% plus is either wrong or excessive by way of high cost allowance. Indeed, we even felt that the lowest bracket upto Rs. 100/- needed full neutralisation of the rise in the cost of living as has been held in Killick Nixon Limited v. Killick &Allied Companies Employees Union. (1) Nor do we fail to see the force of Shri Gargs submission that social justice perspectives being integral to industrial jurisprudence. the high cost allowance as a component of D.A. is not impermissible in principle. It is a legitimate item. But we disallow because there is I deliberate omission to make a reference, of that item and so, falls outside the jurisdiction of the tribunal. That is why we have expressly observed that such adisputemaywell be referred by Government, if it considers fit, and this decision will not bar such a courseWe have, however, seen that although a substantial sum was kept as reserve towards the replacement costs, only a fraction of it was actually utilised. The company, therefore,t make any grievance about the manner in which the Tribunal has, dealt with this aspectWe findthat the Tribunal has exhaustively gone into the wholes matter with care and kept in view the five principles laid down by this Court in the Bengal Chemical &Pharmaceutical Works Ltd. v. Its Workmen([1969] 2 S.C.R. 113.), the 5th one being additional financial burden which dearness allowance would impose upon the employer and his ability for bear such burden. We are unable to find any infirmity in the Tribunal dealing with the point of the financial capacity of the employer to bear theburden.The Tribunal finally observed as follows
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Dr. Subramanian Swamy Vs. State Of Tamil Nadu | concerned, it is under challenge in Writ Petition (C) No. 544 of 2009 and the said petition had earlier been tagged with these appeals, but it has been de-linked and is to be beard after the judgment in these appeals is delivered. Thus, in view of the stand taken by the State before this court, going into the issue of validity of Section 45 of the Act 1959 does not arise and in that respect it has been submitted in written submissions as under: (a) The scheme of administration in Board’s Order No.997 dated 8.5.1933 under the Act 1927 contained various provisions inter-alia that active management would rest in the committee consisting of nine members who were to be elected from among the Podhu Dikshitars (clause 4);(b) At the time of issuing the order of appointment of Executive Officer, the Podhu Dikshitars were given full opportunity of hearing and the powers and duties of the Executive Officer as defined by the Commissioner would show that the religious affairs have not been touched at all and the trustees and the Executive Officers are jointly managing the temple. The Podhu Dikshitars have not been divested of the properties and it was not the intention of the State Government to remove the trustees altogether, rather the Executive Officers function alongwith the trustees;(c) In any event, the Podhu Dikshitars are trustees in the temple and they have not been divested of their properties. The Executive Officer is only collaborating with the trustees in administering the properties. Their religious activities have not been touched. Neither the powers of the trustees have been suspended nor the Executive Officers have been vested with their powers and the Executive Officers only assist the trustees in management of the temple. It was not the intention to remove the trustees altogether, nor the order of appointment of the Executive Officer suspends the scheme already framed way back in 1939. 46. Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force. Super-session of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period. Regulate is defined as to direct; to direct by rule or restriction; to direct or manage according to the certain standards, to restrain or restrict. The word `regulate’ is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation. The word `regulate’ is elastic enough to include issuance of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu & Anr., AIR 1985 SC 660 ; and BalmerLawrie & Company Limited & Ors. Partha Sarathi Sen Roy & Ors., (2013) 8 SCC 345 ) 48. Even otherwise it is not permissible for the State/Statutory Authorities to supersede the administration by adopting any oblique/circuitous method. In Sant Lal Gupta & Ors. v. Modern Coop. Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 , this Court held: “It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud”. An authority cannot be permitted to evade a law by “shift or contrivance”.”(See also: JagirSingh v. Ranbir Singh, AIR 1979 SC 381 ; A.P. Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors. AIR 2011 SC 3298 ; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. AIR 2011 SC 3470 ). 49. We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust. | 1[ds]38. Thus, in view of the above, it was not permissible for the High Court to assume that it had jurisdiction to sit in appeal against its earlier judgment of 1951 which had attained finality. Even otherwise, the High Court has committed an error in holding that the said judgment in MarimuthuDikshitar (Supra) would not operate as res judicata. Even if the Temple was neither established, nor owned by the said respondent, nor such a claim has ever been made by the Dikshitars, once the High Court in earlier judgment has recognised that they constituted `religiousor section thereof and had right to administer the Temple since they had been administering it for several centuries, the question of re-examination of any issue in this regard could not arise.We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust.Undoubtedly, the object and purpose of enacting Article 26 of the Constitution is to protect the rights conferred therein on a `religious denomination` or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 25 of themeans collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religiouswould stand on a different footing altogether from the right to maintain its own affairs in matters of religion. (Vide: AcharyaMaharajshri Narendra Prasadji Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors., AIR 1974 SC 2098 ; T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., AIR 2003 SC 355 ; and NallorMarthandam Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR 2003 SCCourt upheld the validity of Section 58 of the Act 1951 which had been struck down by the Division Bench which is analogous to Section 64 of the Act 1959.17. In view of the provisions of Sections 44 and 45(2) of the Act 1959, the State Government can regulate the secular activities without interfering with the religious activities.It is not a case to examine whether in the facts and circumstances of the case, the judgments of this court in various cases are required to be followed or the ratio thereof is binding in view of the provisions of Article 141 of the Constitution.Rather the sole question is whether an issue in a case between the same parties, which had been finally determined could be negated relying upon interpretation of law given subsequently in some other cases, and the answer is in the negative.More so, nobody can claim that the fundamental rights can be waived by the person concerned or can be taken away by the State under the garb of regulating certain activities.23. The scope of application of doctrine of res judicata is inliteral meaning ofng that may form an object of rights and includes an object,literally meansmatter adjudged a thing judicially acted upon or decided; a thing or matter settled bys judicata pro veritateis the full maxim which has, over the years, shrunk to mere, which means that res judicata is accepted for truth.The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudencereipublicae ut sit finis(it concerns the State that there be an end to law suits) and partly on the maximdebet bis vexari pro uno et eadem(no man should be vexed twice over for the samean erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v.Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302 ; andv. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 ).Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in thears are religious denomination or sectionis in fact a declaration of their status and making such declaration is in fact a judgment in rem.The issue can be examined from another angle. Explanation to Order XLVII, Rule 1 ofCode of Civil1908 (hereinafter referred to as the ‘provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide: RajendraKumar & Ors. v. Rambhai & Ors., AIR 2003 SC 2095 ).36. In view of the fact that the rights of the respondent no. 6 to administer the Temple had already been finally determined by the High Court in 1951 and attained finality as State of Madras (as it then was) had withdrawn the notification in the appeal before this Court, we are of the considered opinion that the State authorities under the Act 1959 could not pass any order denying those rights. Admittedly, the Act 1959 had been enacted after pronouncement of the said judgment but there is nothing in the Act taking away the rights of the respondent no. 6, declared by the court, in the Temple or in the administration thereof.37. The fundamental rights as protected under Article 26 of the Constitution are already indicated for observance in Section 107 of the Act 1959 itself. Such rights cannot be treated to have been waived nor its protection denied. Consequently, the power to supersede the functions of a `religious denomination` is to be read as regulatory for a certain purpose and for a limited duration, and not an authority to virtually abrogate the rights of administration conferred onon, it was not permissible for the authorities to pass any order divesting the said respondent from administration of the Temple and thus, all orders passed in this regard are liable to be held inconsequential and unenforceable. More so, the judgments relied upon by the respondents are distinguishable on facts.Thus, in view of the above, it was not permissible for the High Court to assume that it had jurisdiction to sit in appeal against its earlier judgment of 1951 which had attained finality. Even otherwise, the High Court has committed an error in holding that the said judgment in MarimuthuDikshitar (Supra) would not operate as res judicata. Even if the Temple was neither established, nor owned by the said respondent, nor such a claim has ever been made by the Dikshitars, once the High Court in earlier judgment has recognised that they constituted `religiousor section thereof and had right to administer the Temple since they had been administering it for several centuries, the question ofof any issue in this regard could not arise.Relevant features of the order passed by the Commissioner are that the Executive Officer shall be incharge of all immovable properties of the institution; the Executive Officer shall be entitled to the custody of all immovables, livestock and grains; the Executive Officer shall be entitled to receive all the income in cash and kind and all offerings; all such income and offerings shall be in his custody; all the office holders and servants shall work under the immediate control and superintendence of the Executive Officer, though subject to the disciplinary control of the Secretary of theno.6., etc.40. Section 116 of the Act 1959 enables the State Government to frame rules to carry out the purpose of the Act formatters expressly required or allowed by this Act to beClause 3 thereof requires approval of the rules by the House of State Legislature. The Executive Officer so appointed by the Commissioner has to function as per assigned duties and to the extent the Commissioner directs him to perform.Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force. | 1 | 9,762 | 1,854 | ### Instruction:
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concerned, it is under challenge in Writ Petition (C) No. 544 of 2009 and the said petition had earlier been tagged with these appeals, but it has been de-linked and is to be beard after the judgment in these appeals is delivered. Thus, in view of the stand taken by the State before this court, going into the issue of validity of Section 45 of the Act 1959 does not arise and in that respect it has been submitted in written submissions as under: (a) The scheme of administration in Board’s Order No.997 dated 8.5.1933 under the Act 1927 contained various provisions inter-alia that active management would rest in the committee consisting of nine members who were to be elected from among the Podhu Dikshitars (clause 4);(b) At the time of issuing the order of appointment of Executive Officer, the Podhu Dikshitars were given full opportunity of hearing and the powers and duties of the Executive Officer as defined by the Commissioner would show that the religious affairs have not been touched at all and the trustees and the Executive Officers are jointly managing the temple. The Podhu Dikshitars have not been divested of the properties and it was not the intention of the State Government to remove the trustees altogether, rather the Executive Officers function alongwith the trustees;(c) In any event, the Podhu Dikshitars are trustees in the temple and they have not been divested of their properties. The Executive Officer is only collaborating with the trustees in administering the properties. Their religious activities have not been touched. Neither the powers of the trustees have been suspended nor the Executive Officers have been vested with their powers and the Executive Officers only assist the trustees in management of the temple. It was not the intention to remove the trustees altogether, nor the order of appointment of the Executive Officer suspends the scheme already framed way back in 1939. 46. Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force. Super-session of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period. Regulate is defined as to direct; to direct by rule or restriction; to direct or manage according to the certain standards, to restrain or restrict. The word `regulate’ is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation. The word `regulate’ is elastic enough to include issuance of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu & Anr., AIR 1985 SC 660 ; and BalmerLawrie & Company Limited & Ors. Partha Sarathi Sen Roy & Ors., (2013) 8 SCC 345 ) 48. Even otherwise it is not permissible for the State/Statutory Authorities to supersede the administration by adopting any oblique/circuitous method. In Sant Lal Gupta & Ors. v. Modern Coop. Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 , this Court held: “It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud”. An authority cannot be permitted to evade a law by “shift or contrivance”.”(See also: JagirSingh v. Ranbir Singh, AIR 1979 SC 381 ; A.P. Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors. AIR 2011 SC 3298 ; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. AIR 2011 SC 3470 ). 49. We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust.
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for the samean erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v.Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302 ; andv. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 ).Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in thears are religious denomination or sectionis in fact a declaration of their status and making such declaration is in fact a judgment in rem.The issue can be examined from another angle. Explanation to Order XLVII, Rule 1 ofCode of Civil1908 (hereinafter referred to as the ‘provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide: RajendraKumar & Ors. v. Rambhai & Ors., AIR 2003 SC 2095 ).36. In view of the fact that the rights of the respondent no. 6 to administer the Temple had already been finally determined by the High Court in 1951 and attained finality as State of Madras (as it then was) had withdrawn the notification in the appeal before this Court, we are of the considered opinion that the State authorities under the Act 1959 could not pass any order denying those rights. Admittedly, the Act 1959 had been enacted after pronouncement of the said judgment but there is nothing in the Act taking away the rights of the respondent no. 6, declared by the court, in the Temple or in the administration thereof.37. The fundamental rights as protected under Article 26 of the Constitution are already indicated for observance in Section 107 of the Act 1959 itself. Such rights cannot be treated to have been waived nor its protection denied. Consequently, the power to supersede the functions of a `religious denomination` is to be read as regulatory for a certain purpose and for a limited duration, and not an authority to virtually abrogate the rights of administration conferred onon, it was not permissible for the authorities to pass any order divesting the said respondent from administration of the Temple and thus, all orders passed in this regard are liable to be held inconsequential and unenforceable. More so, the judgments relied upon by the respondents are distinguishable on facts.Thus, in view of the above, it was not permissible for the High Court to assume that it had jurisdiction to sit in appeal against its earlier judgment of 1951 which had attained finality. Even otherwise, the High Court has committed an error in holding that the said judgment in MarimuthuDikshitar (Supra) would not operate as res judicata. Even if the Temple was neither established, nor owned by the said respondent, nor such a claim has ever been made by the Dikshitars, once the High Court in earlier judgment has recognised that they constituted `religiousor section thereof and had right to administer the Temple since they had been administering it for several centuries, the question ofof any issue in this regard could not arise.Relevant features of the order passed by the Commissioner are that the Executive Officer shall be incharge of all immovable properties of the institution; the Executive Officer shall be entitled to the custody of all immovables, livestock and grains; the Executive Officer shall be entitled to receive all the income in cash and kind and all offerings; all such income and offerings shall be in his custody; all the office holders and servants shall work under the immediate control and superintendence of the Executive Officer, though subject to the disciplinary control of the Secretary of theno.6., etc.40. Section 116 of the Act 1959 enables the State Government to frame rules to carry out the purpose of the Act formatters expressly required or allowed by this Act to beClause 3 thereof requires approval of the rules by the House of State Legislature. The Executive Officer so appointed by the Commissioner has to function as per assigned duties and to the extent the Commissioner directs him to perform.Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force.
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Union Of India Vs. M/S Indusind Bank Ltd | appellant should have exercised the right within the period agreed to between the parties. The right was enforced under the agreement when notice was issued and the company was required to pay the amount. Assertion of right is one thing than enforcing it in a court of law. The agreement does not anywhere deal with enforcement of right in a court of law. It only deals with assertion of right. The assertion of right, therefore, was governed by the agreement and it is imperative as well that the party concerned must put the other side on notice by asserting the right within a particular time as provided in the agreement to enable the other side not only to comply with the demand but also to put on guard that in case it is not complied it may have to face proceedings in the court of law. Since admittedly the Corporation did issue notice prior to expiry of six months from the termination of contract, it was in accordance with the Fidelity Insurance clause and, therefore, the suit filed by the appellant was within time.? [para 8] 33. In National Insurance Co. Ltd. v. Sujir Ganesh Nayak & Co., (1997) 4 SCC 366 , this Court had to decide whether condition 19 of an insurance policy was hit by the unamended Section 28. Condition 19 reads as follows:- ?Condition 19.—In no case whatever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration.? 34. After referring to the relevant case law and a detailed reference to the Food Corporation judgment, this Court held:- ?Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the Insurance Company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause therefore has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case. The Insurance Company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months thereafter on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance case [(1976) 1 SCC 943] while interpreting a clause couched in similar terms this Court said: (SCC p. 952, para 23) ?It has been repeatedly held that such a clause is not hit by Section 28 of the Contract Act.? Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause.? [para 21] 35. In H.P. State Forest Co. Ltd. v. United India Insurance Co. Ltd., (2009) 2 SCC 252 , this Court had to decide whether clause 6(ii) of an insurance policy was hit by the unamended Section 28. This clause reads as follows:- ?6(ii) In no case whatsoever shall the Company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration: it being expressly agreed and declared that if the Company shall declaim liability for any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject-matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.? After a copious reference to Food Corporation and S.G. Nayak?s case, this Court held that such clauses would not be hit by Section 28. 36. Considering that the respondents? first argument has been accepted by us, we do not think it necessary to go into the finer details of the second argument and as to whether the aforesaid clauses in the bank guarantee would be hit by Section 28(b) after the 1997 amendment. It may only be noticed, in passing, that Parliament has to a large extent redressed any grievance that may arise qua bank guarantees in particular, by adding an exception (iii) by an amendment made to Section 28 in 2012 with effect from 18.1.2013. Since we are not directly concerned with this amendment, suffice it to say that stipulations like the present would pass muster after 2013 if the specified period is not less than one year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of a party from liability. | 0[ds]it becomes clear that Section 28, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and Division Bench were in error in holding that the amended Section 28 would apply.Considering that the un-amended Section 28 is to apply, it is important to advert to the said Section and see what are its essential ingredients. First, a party should be restricted absolutely from enforcing his rights under or in respect of any contract. Secondly, such absolute restriction should be to approach, by way of a usual legal proceeding, the ordinary Tribunals set up by the State. Thirdly, such absolute restriction may also relate to the limiting of time within which the party may thus enforce its rights.Considering that the respondents? first argument has been accepted by us, we do not think it necessary to go into the finer details of the second argument and as to whether the aforesaid clauses in the bank guarantee would be hit by Section 28(b) after the 1997 amendment. It may only be noticed, in passing, that Parliament has to a large extent redressed any grievance that may arise qua bank guarantees in particular, by adding an exception (iii) by an amendment made to Section 28 in 2012 with effect from 18.1.2013. Since we are not directly concerned with this amendment, suffice it to say that stipulations like the present would pass muster after 2013 if the specified period is not less than one year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of a party from liability. | 0 | 7,403 | 368 | ### Instruction:
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appellant should have exercised the right within the period agreed to between the parties. The right was enforced under the agreement when notice was issued and the company was required to pay the amount. Assertion of right is one thing than enforcing it in a court of law. The agreement does not anywhere deal with enforcement of right in a court of law. It only deals with assertion of right. The assertion of right, therefore, was governed by the agreement and it is imperative as well that the party concerned must put the other side on notice by asserting the right within a particular time as provided in the agreement to enable the other side not only to comply with the demand but also to put on guard that in case it is not complied it may have to face proceedings in the court of law. Since admittedly the Corporation did issue notice prior to expiry of six months from the termination of contract, it was in accordance with the Fidelity Insurance clause and, therefore, the suit filed by the appellant was within time.? [para 8] 33. In National Insurance Co. Ltd. v. Sujir Ganesh Nayak & Co., (1997) 4 SCC 366 , this Court had to decide whether condition 19 of an insurance policy was hit by the unamended Section 28. Condition 19 reads as follows:- ?Condition 19.—In no case whatever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration.? 34. After referring to the relevant case law and a detailed reference to the Food Corporation judgment, this Court held:- ?Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the Insurance Company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause therefore has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case. The Insurance Company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months thereafter on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance case [(1976) 1 SCC 943] while interpreting a clause couched in similar terms this Court said: (SCC p. 952, para 23) ?It has been repeatedly held that such a clause is not hit by Section 28 of the Contract Act.? Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause.? [para 21] 35. In H.P. State Forest Co. Ltd. v. United India Insurance Co. Ltd., (2009) 2 SCC 252 , this Court had to decide whether clause 6(ii) of an insurance policy was hit by the unamended Section 28. This clause reads as follows:- ?6(ii) In no case whatsoever shall the Company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration: it being expressly agreed and declared that if the Company shall declaim liability for any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject-matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.? After a copious reference to Food Corporation and S.G. Nayak?s case, this Court held that such clauses would not be hit by Section 28. 36. Considering that the respondents? first argument has been accepted by us, we do not think it necessary to go into the finer details of the second argument and as to whether the aforesaid clauses in the bank guarantee would be hit by Section 28(b) after the 1997 amendment. It may only be noticed, in passing, that Parliament has to a large extent redressed any grievance that may arise qua bank guarantees in particular, by adding an exception (iii) by an amendment made to Section 28 in 2012 with effect from 18.1.2013. Since we are not directly concerned with this amendment, suffice it to say that stipulations like the present would pass muster after 2013 if the specified period is not less than one year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of a party from liability.
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### Explanation:
it becomes clear that Section 28, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and Division Bench were in error in holding that the amended Section 28 would apply.Considering that the un-amended Section 28 is to apply, it is important to advert to the said Section and see what are its essential ingredients. First, a party should be restricted absolutely from enforcing his rights under or in respect of any contract. Secondly, such absolute restriction should be to approach, by way of a usual legal proceeding, the ordinary Tribunals set up by the State. Thirdly, such absolute restriction may also relate to the limiting of time within which the party may thus enforce its rights.Considering that the respondents? first argument has been accepted by us, we do not think it necessary to go into the finer details of the second argument and as to whether the aforesaid clauses in the bank guarantee would be hit by Section 28(b) after the 1997 amendment. It may only be noticed, in passing, that Parliament has to a large extent redressed any grievance that may arise qua bank guarantees in particular, by adding an exception (iii) by an amendment made to Section 28 in 2012 with effect from 18.1.2013. Since we are not directly concerned with this amendment, suffice it to say that stipulations like the present would pass muster after 2013 if the specified period is not less than one year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of a party from liability.
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CENTURY METAL RECYCLING PVT. LTD Vs. UNION OF INDIA | As per sub Rule (2) of Rule 12, the proper officer when required must intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared. The said mandate of sub-Rule (2) of Rule 12 cannot be ignored or waived. Formation of opinion regarding reasonable doubt as to the truth or accuracy of the valuation and communication of the said grounds to the importer is mandatory, subterfuge to by-pass and circumvent the statutory mandate is unacceptable. Formation of belief and recording of reasons as to reasonable doubt and communication of the reasons when required is the only way and manner in which the proper officer in terms of Rule 12 can proceed to make assessment under Rules 4 to 9 after rejecting the transaction value as declared.21. The mandate to record reasons at the second stage of enquiry is not expressly stipulated, albeit it has been read by us by implication in Rule 12. Being conscious that this mandate if applied to past cases would possibly lead to complications and difficulties, we would invoke the doctrine of prospective application with the direction that the past cases will be decided on a case to case basis, depending upon the factual matrix and considerations like whether the importer has asked for ‘certain reasons?, whether the reasons were not communicated, whether ‘certain reasons? can be deciphered from the assessment/valuation order, whether misdescription or false declaration was apparent, etc. 22. In Commissioner of Customs vs. Prabhu Dayal Prem Chand 2010 (13) SCC 535 , this Court had rejected the plea that the Revenue was justified in redetermining the value of brass and copper scrap on the basis of information received from London Metal Exchange on the price of the said metals on the ground that the importer was not confronted with any contemporaneous material for enhancing the transaction value. This Court affirmed the order of the Tribunal in Prabhu Dayal Prem Chand (supra) and held that the order in original had not indicated details of any contemporaneous import or other material in the form of corroborative material which had necessitated the enhancement in the transaction valuation. 23. We would now refer to the findings of the order in original in the present case which observes that the appellants had declared value of the aluminium scrap as Rs.81.31 per kg, albeit the contemporaneous import data in the form of different bills of entry had indicated aluminium scrap values between Rs. 83.26 to Rs. 120.897 per kg. The said portion of the order refers to at least four bills of entries declaring assessable value of less than Rs. 85 per kg. Interestingly, the order in original also records that the imported goods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/ similar goods imported in India having same chemical and physical composition and that the values of aluminium scrap identical/similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s Sanjivini Non- Ferrous Trading Pvt. Ltd. (supra) wherein it was held that the transaction value mentioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports or other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules.24. Therefore, in the facts and circumstances of the present case, it has to be held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored. The Assistant Collector has rejected the transaction value as declared in the bill of entry which, as noticed above, is clearly and fundamentally erroneous besides being contradictory. In the aforesaid circumstances, we do not think that the order in assessment dated 7 th April, 2017 can be sustained and upheld. It is set aside and quashed.25. Before closing, we would observe that the Valuation Alerts, as also stated by the respondents, are issued by the Director General of Valuation based on the monitoring of valuation trends of sensitive commodities with a view to take corrective measures. They provide guidance to the field formation in valuation matters. They help ensure uniform practice, smooth functioning and prevent evasion and short payment of duty. However, they should not be construed as interfering with the discretion of the assessment authority who is required to pass an Assessment Order in the given factual matrix. Declared valuation can be rejected based upon the evidence which qualifies and meets the criteria of ‘certain reasons?. Besides the opinion formed must be reasonable. Reference to foreign journals for the price quoted in exchanges etc., to find out the correct international price of concerned goods would be relevant but reliance can be placed on such material only when the adjudicating authority had conducted enquiries and ascertained details with reference to the goods imported which are identical or similar and ‘certain reasons? exists and justifies detailed investigation. These reasons are to be recorded and if requested disclosed/ communicated to the importer. Valuation alerts could be relied upon for default valuation computation under the Rules. (See Varsha Plastic Pvt. Ltd. vs. Union of India (2009) 3 SCC 365 ). | 1[ds]What is important to note is that Rules 4 to 9 are subject to the provisions of Rule 3 thereby giving primacy to Rule 3 which in turn gives primacy to Rule 12 of the 2007 Rules.14. Rule 12, which as noticed above enjoys primacy and pivotal position, applies where the proper officer has reason to doubt the truth or accuracy of the value declared for the imported goods. It envisages a two-step verification and examination exercise. At the first instance, the proper officer must ask and call upon the importer to furnish further information including documents to justify the declared transactional value. The proper officer may thereafter accept the transactional value as declared. However, where the proper officer is not satisfied and has reasonable doubt about the truth or accuracy of the value so declared, it is deemed that the transactional value of such imported goods cannot be determined under the provision of sub-rule (1) of Rule 3 of the 2007 Rules. Clause-(iii) of Explanation to Rule 12 states that the proper officer can on ‘certain reasons? raise doubts about the truth or accuracy of declared value. ‘Certain reasons? would include conditions specified in clauses (a) to (f) i.e. higher value of identical similar goods of comparable quantities in a comparable transaction, abnormal discount or abnormal deduction from ordinary competitive prices, sales involving the special prices, misdeclaration on parameters such as description, quality, quantity, country of origin, year of manufacture or production, non-declaration of parameters such as brand and grade etc. and fraudulent or manipulated documents. Grounds mentioned in (a) to (f) however are not exhaustive of ‘certain reasons? to raise doubt about the truth or accuracy of the declared value. Clause (ii) to Explanation states that the declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after enquiry in consultation with the importers. Clause-(i) to the Explanation states that Rule 12 does not provide a method of determination of value but provides the procedure or mechanism in cases where declared value can be rejected when there is a reasonable doubt that the declared transaction value does not represent the actual transaction value. In such cases the transaction value is to be sequentially determined in accordance with Rules 4 to 9 of the 2007 Rules. Sub-rule (2) of Rule 12 stipulates that on request of an importer, the proper officer shall intimate to the importer in writing the grounds, i.e. the reason for doubting the truth or accuracy of the value declared in relation to the imported goods. Further, the proper officer shall provide a reasonable opportunity of being heard to the importer before he makes the valuation in the form of final decision under sub-rule (1).15. The requirements of Rule 12, therefore, can be summarised as under:(a) The proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods.(b) Proper officer must ask the importer of such goods further information which may include documents or evidence;(c) On receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists.(d) When the proper officer does not have reasonable doubt, the goods are cleared on the declared value.(e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules.(f) The proper officer can raise doubts as to the truth or accuracy of the declared value on ‘certain reasons? which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation.(g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested.(h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value based on ‘certain reasons? to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression?grounds for doubting the truth or accuracy of the value declared?has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the ‘reason to doubt? exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared.17. The choice of words deployed in Rule 12 of the 2007 Rules are significant and of much consequence. The Legislature, we must agree, has not used the expression ?reason to believe? or ?satisfaction? or such other positive terms as a pre-condition on the part of the proper officer. The expression ?reason to believe? which would have required the proper officer to refer to facts and figures to show existence of positive belief on the undervaluation or lower declaration of the transaction value. The expression ?reason to doubt? as a sequitur would require a different threshold and examination. It cannot be equated with the requirements of positive reasons to believe, for the word ‘doubt? refers to un-certainty and irresolution reflecting suspicion and apprehension. However, this doubt must be reasonable i.e. have a degree of objectivity and basis/foundation for the suspicion must be based on ‘certainbeyond ‘reasonable doubt? is certainly not the requirement under proviso to Section 14 of the Act and Rule 12 of the 2007 Rules, albeit the above quote draws a distinction between a simple doubt and a doubt which is reasonable. In the context of the proviso to Section 14 read with Rule 12 and clause (iii) of Explanation to the 2007 Rules, the doubt must be reasonable and based on ‘certain reasons?. The proper officer must record ‘certain reasons? specified in (a) to (f) or similar grounds in writing at the second stage before he proceeds to discard the declared value and decides to determine the same by proceeding sequentially in accordance with Rules 4 to 9 of the 2007 Rules. It refers to a doubt which the proper officer possesses even after the importer has been asked to furnish further information including documents and evidence during the preliminary enquiry to clear his doubt about the truth and accuracy of the value declared. Therefore, there has to be a preliminary enquiry by the proper officer in which the importer must be given an opportunity for clarification of the doubts of the officer by furnishing of documents and evidence as to the accuracy or truth of the value declared. It is only in case where the doubt of the proper officer persists after conducting examination of information including documents or on account of non-furnishing of information that the procedure for further investigation and determination of value in terms of Rules 4 to 9 would come into operation and would be applicable. Reasonable doubt will exist if the doubt is reasonable and for ‘certain reasons? and not fanciful and absurd. A doubt to justify detailed enquiry under the proviso to Section 14 read with Rule 12 should not be based on initial apprehension, be imaginary or a mere perception not founded on reasonable and ‘certain? material. It should be based and predicated on grounds and material in the form of ‘certain reasons? and not mere ipse dixit. Subjecting imports to detailed enquiry on mere suspicion because one is distrustful and unsure without reasonable and certain reasons would be contrary to the scheme and purpose behind the provisions which ensure quick and expeditious clearance of importedsignificance of Section 18 of the Act can be understood in light of the above provisions. Section 18 provides for provisional assessment of duty in cases specified in sub-section (1) of the Section. Clause (c) of sub-section (1) deals with cases where importer or exporter has produced necessary documents and furnished full information for assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty. However, Clause (d) is wider and would apply when the importer or exporter does not produce necessary documents or furnish information. In all cases covered under Clauses (a) to (d), the proper officer may direct provisional assessment of the duty leviable on the imported goods. Where duty is assessed provisionally, the importer or exporter has to furnish security as the proper officer deems fit for payment of deficiency, if any, between the duty provisionally paid and the duty finally assessed.On interpreting Section 18 of the Act, it is held that when there is a dispute between the customs authorities and the importer as regards the valuation of the imported goods, on satisfaction of the conditions enumerated in sub-section (1), the authorities should make provisional assessment of customs duty under Section 18 of the Act. This expedites clearance, pending final adjudication on merits which may take time. This is also the mandate of the Board Circular No.38/2016 dated 22 nd August, 2016. Any insistence and compulsion by the authorities that the importer should disclaim and forgo his statutory right under Section 18 of the Act would not be correct. Neither would it be right to reject the valuation as declared by the importer without reasonable doubt for certain reasons.20. We would ex facie for the reasons recorded below reject the contention of the respondents predicated on the letter of appellants dated 6 th March, 2017 that the appellants did not seek provisional assessment of the bill of entry and had accepted and paid duty on the valuation done by the customs authorities. This letter exposits the predicament faced by the appellants as it states that the appellants were in urgent requirement and wanted clearance of the goods. Pertinently, the appellants had earlier written several letters, including communications dated 22 nd December, 2016 and 4 th March, 2017 requesting for clearance of the imported consignment of aluminium scrap on the declared transaction value pointing out therein that on account of delay in the clearance of the imported consignments, the appellants and its sister concern had been compelled to pay excess duty of over Rs.25 crores from August 2013 onwards. It is unfortunate and has to be accepted that the respondent authorities had compelled and forced the appellant to furnish the letter dated 6 th March, 2017 thereby waiving of its right to provisional assessment and accepting valuation in terms of Rules 4 to 10. As per sub Rule (2) of Rule 12, the proper officer when required must intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared. The said mandate of sub-Rule (2) of Rule 12 cannot be ignored or waived. Formation of opinion regarding reasonable doubt as to the truth or accuracy of the valuation and communication of the said grounds to the importer is mandatory, subterfuge to by-pass and circumvent the statutory mandate is unacceptable. Formation of belief and recording of reasons as to reasonable doubt and communication of the reasons when required is the only way and manner in which the proper officer in terms of Rule 12 can proceed to make assessment under Rules 4 to 9 after rejecting the transaction value as declared.21. The mandate to record reasons at the second stage of enquiry is not expressly stipulated, albeit it has been read by us by implication in Rule 12. Being conscious that this mandate if applied to past cases would possibly lead to complications and difficulties, we would invoke the doctrine of prospective application with the direction that the past cases will be decided on a case to case basis, depending upon the factual matrix and considerations like whether the importer has asked for ‘certain reasons?, whether the reasons were not communicated, whether ‘certain reasons? can be deciphered from the assessment/valuation order, whether misdescription or false declaration was apparent, etc.We would now refer to the findings of the order in original in the present case which observes that the appellants had declared value of the aluminium scrap as Rs.81.31 per kg, albeit the contemporaneous import data in the form of different bills of entry had indicated aluminium scrap values between Rs. 83.26 to Rs. 120.897 per kg. The said portion of the order refers to at least four bills of entries declaring assessable value of less than Rs. 85 per kg. Interestingly, the order in original also records that the imported goods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/ similar goods imported in India having same chemical and physical composition and that the values of aluminium scrap identical/similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s Sanjivini Non- Ferrous Trading Pvt. Ltd. (supra) wherein it was held that the transaction value mentioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports or other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules.24. Therefore, in the facts and circumstances of the present case, it has to be held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored. The Assistant Collector has rejected the transaction value as declared in the bill of entry which, as noticed above, is clearly and fundamentally erroneous besides being contradictory. In the aforesaid circumstances, we do not think that the order in assessment dated 7 th April, 2017 can be sustained and upheld. It is set aside and quashed.25. Before closing, we would observe that the Valuation Alerts, as also stated by the respondents, are issued by the Director General of Valuation based on the monitoring of valuation trends of sensitive commodities with a view to take corrective measures. They provide guidance to the field formation in valuation matters. They help ensure uniform practice, smooth functioning and prevent evasion and short payment of duty. However, they should not be construed as interfering with the discretion of the assessment authority who is required to pass an Assessment Order in the given factual matrix. Declared valuation can be rejected based upon the evidence which qualifies and meets the criteria of ‘certain reasons?. Besides the opinion formed must be reasonable. Reference to foreign journals for the price quoted in exchanges etc., to find out the correct international price of concerned goods would be relevant but reliance can be placed on such material only when the adjudicating authority had conducted enquiries and ascertained details with reference to the goods imported which are identical or similar and ‘certain reasons? exists and justifies detailed investigation. These reasons are to be recorded and if requested disclosed/ communicated to the importer. Valuation alerts could be relied upon for default valuation computation under the Rules. (See Varsha Plastic Pvt. Ltd. vs. Union of India (2009) 3 SCC 365 ). | 1 | 8,201 | 3,027 | ### 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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As per sub Rule (2) of Rule 12, the proper officer when required must intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared. The said mandate of sub-Rule (2) of Rule 12 cannot be ignored or waived. Formation of opinion regarding reasonable doubt as to the truth or accuracy of the valuation and communication of the said grounds to the importer is mandatory, subterfuge to by-pass and circumvent the statutory mandate is unacceptable. Formation of belief and recording of reasons as to reasonable doubt and communication of the reasons when required is the only way and manner in which the proper officer in terms of Rule 12 can proceed to make assessment under Rules 4 to 9 after rejecting the transaction value as declared.21. The mandate to record reasons at the second stage of enquiry is not expressly stipulated, albeit it has been read by us by implication in Rule 12. Being conscious that this mandate if applied to past cases would possibly lead to complications and difficulties, we would invoke the doctrine of prospective application with the direction that the past cases will be decided on a case to case basis, depending upon the factual matrix and considerations like whether the importer has asked for ‘certain reasons?, whether the reasons were not communicated, whether ‘certain reasons? can be deciphered from the assessment/valuation order, whether misdescription or false declaration was apparent, etc. 22. In Commissioner of Customs vs. Prabhu Dayal Prem Chand 2010 (13) SCC 535 , this Court had rejected the plea that the Revenue was justified in redetermining the value of brass and copper scrap on the basis of information received from London Metal Exchange on the price of the said metals on the ground that the importer was not confronted with any contemporaneous material for enhancing the transaction value. This Court affirmed the order of the Tribunal in Prabhu Dayal Prem Chand (supra) and held that the order in original had not indicated details of any contemporaneous import or other material in the form of corroborative material which had necessitated the enhancement in the transaction valuation. 23. We would now refer to the findings of the order in original in the present case which observes that the appellants had declared value of the aluminium scrap as Rs.81.31 per kg, albeit the contemporaneous import data in the form of different bills of entry had indicated aluminium scrap values between Rs. 83.26 to Rs. 120.897 per kg. The said portion of the order refers to at least four bills of entries declaring assessable value of less than Rs. 85 per kg. Interestingly, the order in original also records that the imported goods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/ similar goods imported in India having same chemical and physical composition and that the values of aluminium scrap identical/similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s Sanjivini Non- Ferrous Trading Pvt. Ltd. (supra) wherein it was held that the transaction value mentioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports or other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules.24. Therefore, in the facts and circumstances of the present case, it has to be held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored. The Assistant Collector has rejected the transaction value as declared in the bill of entry which, as noticed above, is clearly and fundamentally erroneous besides being contradictory. In the aforesaid circumstances, we do not think that the order in assessment dated 7 th April, 2017 can be sustained and upheld. It is set aside and quashed.25. Before closing, we would observe that the Valuation Alerts, as also stated by the respondents, are issued by the Director General of Valuation based on the monitoring of valuation trends of sensitive commodities with a view to take corrective measures. They provide guidance to the field formation in valuation matters. They help ensure uniform practice, smooth functioning and prevent evasion and short payment of duty. However, they should not be construed as interfering with the discretion of the assessment authority who is required to pass an Assessment Order in the given factual matrix. Declared valuation can be rejected based upon the evidence which qualifies and meets the criteria of ‘certain reasons?. Besides the opinion formed must be reasonable. Reference to foreign journals for the price quoted in exchanges etc., to find out the correct international price of concerned goods would be relevant but reliance can be placed on such material only when the adjudicating authority had conducted enquiries and ascertained details with reference to the goods imported which are identical or similar and ‘certain reasons? exists and justifies detailed investigation. These reasons are to be recorded and if requested disclosed/ communicated to the importer. Valuation alerts could be relied upon for default valuation computation under the Rules. (See Varsha Plastic Pvt. Ltd. vs. Union of India (2009) 3 SCC 365 ).
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of the goods. Pertinently, the appellants had earlier written several letters, including communications dated 22 nd December, 2016 and 4 th March, 2017 requesting for clearance of the imported consignment of aluminium scrap on the declared transaction value pointing out therein that on account of delay in the clearance of the imported consignments, the appellants and its sister concern had been compelled to pay excess duty of over Rs.25 crores from August 2013 onwards. It is unfortunate and has to be accepted that the respondent authorities had compelled and forced the appellant to furnish the letter dated 6 th March, 2017 thereby waiving of its right to provisional assessment and accepting valuation in terms of Rules 4 to 10. As per sub Rule (2) of Rule 12, the proper officer when required must intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared. The said mandate of sub-Rule (2) of Rule 12 cannot be ignored or waived. Formation of opinion regarding reasonable doubt as to the truth or accuracy of the valuation and communication of the said grounds to the importer is mandatory, subterfuge to by-pass and circumvent the statutory mandate is unacceptable. Formation of belief and recording of reasons as to reasonable doubt and communication of the reasons when required is the only way and manner in which the proper officer in terms of Rule 12 can proceed to make assessment under Rules 4 to 9 after rejecting the transaction value as declared.21. The mandate to record reasons at the second stage of enquiry is not expressly stipulated, albeit it has been read by us by implication in Rule 12. Being conscious that this mandate if applied to past cases would possibly lead to complications and difficulties, we would invoke the doctrine of prospective application with the direction that the past cases will be decided on a case to case basis, depending upon the factual matrix and considerations like whether the importer has asked for ‘certain reasons?, whether the reasons were not communicated, whether ‘certain reasons? can be deciphered from the assessment/valuation order, whether misdescription or false declaration was apparent, etc.We would now refer to the findings of the order in original in the present case which observes that the appellants had declared value of the aluminium scrap as Rs.81.31 per kg, albeit the contemporaneous import data in the form of different bills of entry had indicated aluminium scrap values between Rs. 83.26 to Rs. 120.897 per kg. The said portion of the order refers to at least four bills of entries declaring assessable value of less than Rs. 85 per kg. Interestingly, the order in original also records that the imported goods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/ similar goods imported in India having same chemical and physical composition and that the values of aluminium scrap identical/similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s Sanjivini Non- Ferrous Trading Pvt. Ltd. (supra) wherein it was held that the transaction value mentioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports or other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules.24. Therefore, in the facts and circumstances of the present case, it has to be held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored. The Assistant Collector has rejected the transaction value as declared in the bill of entry which, as noticed above, is clearly and fundamentally erroneous besides being contradictory. In the aforesaid circumstances, we do not think that the order in assessment dated 7 th April, 2017 can be sustained and upheld. It is set aside and quashed.25. Before closing, we would observe that the Valuation Alerts, as also stated by the respondents, are issued by the Director General of Valuation based on the monitoring of valuation trends of sensitive commodities with a view to take corrective measures. They provide guidance to the field formation in valuation matters. They help ensure uniform practice, smooth functioning and prevent evasion and short payment of duty. However, they should not be construed as interfering with the discretion of the assessment authority who is required to pass an Assessment Order in the given factual matrix. Declared valuation can be rejected based upon the evidence which qualifies and meets the criteria of ‘certain reasons?. Besides the opinion formed must be reasonable. Reference to foreign journals for the price quoted in exchanges etc., to find out the correct international price of concerned goods would be relevant but reliance can be placed on such material only when the adjudicating authority had conducted enquiries and ascertained details with reference to the goods imported which are identical or similar and ‘certain reasons? exists and justifies detailed investigation. These reasons are to be recorded and if requested disclosed/ communicated to the importer. Valuation alerts could be relied upon for default valuation computation under the Rules. (See Varsha Plastic Pvt. Ltd. vs. Union of India (2009) 3 SCC 365 ).
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KADUPUGOTLA VARALAKSHMI Vs. VUDAGIRI VENKATA RAO & ORS | clarify the situation and making out this omission insignificant. 71.The nature of defence of denial of execution of Ex.A1 set up by the 1st respondent, without referring or denying that the appellant was always ready and willing to perform his part of the contract is a factor to be considered in this respect. 72. The learned counsel for the appellant placed reliance in Narinderjit Singh vs. North Star Estate Promoters Limited [(2012) 5 SCC 712 26] in this respect. In given facts and circumstances, referring to denial of agreement of sale set up as defence in a suit for specific performance, it is observed in this ruling that objection that the plaintiff is not ready and willing to perform his part of the contract under agreement for sale, cannot stand. It was thus observed that the defendant could not have raised a plea relating to want of readiness and willingness on the part of the plaintiff to perform his part of the contract. 73. Further reliance is placed by the learned counsel for the appellant in this context in Silvey and others vs. Arun Varghese and another[(2008) 11 SCC 45] , apart from a judgment of Punjab & Haryana High Court in Santa Singh v. Binder Singh and others [2006 SCC OnLine P&H 442]. 74. Contentions are also advanced on behalf of the appellant, referring to the defence of 3rd respondent, who is subsequent purchaser of the suit property under Ex.B4 that she cannot raise such objection. Reliance is placed in this context in M. M.S.Investments, Madurai and others vs. V. Veerappan and others [(2007) 9 SCC 660] . In para-6 of this ruling, it is observed as under: 6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the specific Relief Act, 1963 (in short the Act) is not applicable. 75. In Jugraj Singh and another vs. Labh Singh and others[(1995) 2 SCC 31] in this respect it is observed in para 5 referring to the celebrated judgment in Gomathinayagam Pillai v. Palaniswami NadarAIR 1967 SC 868 ] as under: 5. This Court in Gomathinayagam Pillai v. Palaniswami Nadar quoting with approval Ardeshir case (AIR 1928 PC 208 ) had held as follows: But the respondent has claimed a decree for specific performance and it is for him to establish that he was , since the date of the contract, continuously ready and willing to perform his part of the contract. If he failed to do so, his claim for specific performance must fail. That plea is specifically available to the vendor/ defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers.... 76. Therefore, in the light of the above legal position, it is not open for the 3rd respondent to raise this plea. Thus, on the material it has to be held that the appellant did succeed in making out that he was ready and willing to perform his part of the contract under Ex.A1 at all material times against the 1st respondent. Thus, this point is answered. 7. Thus, the submissions advanced on behalf of the appellant i.e. subsequent purchaser were not taken into account on the premise that it would not be open to a subsequent purchaser to challenge the readiness and willingness on part of the plaintiff. The High Court had relied upon the decision of this Court rendered in Jugraj Singh and Another vs. Labh Singh and Others [(1995) 2 SCC 31] to come to such conclusion. 8. It must be stated here that the principles laid down in Jugraj Singh and Another (supra) were not accepted by a larger Bench of this Court. The relevant discussion in paragraph 6 in the case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and Another [(2000) 2 SCC428] was as under: 6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case [(1995) 2 SCC 31] is erroneous. 9. Learned counsel appearing for the plaintiff - respondent no.1 sought to support on facts the conclusion arrived by the High Court on the issue of readiness and willingness. 10. However, the fact remains that the entire perspective with which the matter was considered by the High Court was clearly erroneous and as the observations made by the High Court in paragraph 76 disclose, the High Court went on the footing that it was not open to the appellant i.e. subsequent purchaser to raise any submissions on the issue of readiness and willingness. Thus, the judgment under challenge clearly fell in serious error. | 1[ds]8. It must be stated here that the principles laid down in Jugraj Singh and Another (supra) were not accepted by a larger Bench of this Court. The relevant discussion in paragraph 6 in the case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and Another [(2000) 2 SCC428] was as under:6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case [(1995) 2 SCC 31] is erroneous.10. However, the fact remains that the entire perspective with which the matter was considered by the High Court was clearly erroneous and as the observations made by the High Court in paragraph 76 disclose, the High Court went on the footing that it was not open to the appellant i.e. subsequent purchaser to raise any submissions on the issue of readiness and willingness. Thus, the judgment under challenge clearly fell in serious error. | 1 | 1,500 | 332 | ### 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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clarify the situation and making out this omission insignificant. 71.The nature of defence of denial of execution of Ex.A1 set up by the 1st respondent, without referring or denying that the appellant was always ready and willing to perform his part of the contract is a factor to be considered in this respect. 72. The learned counsel for the appellant placed reliance in Narinderjit Singh vs. North Star Estate Promoters Limited [(2012) 5 SCC 712 26] in this respect. In given facts and circumstances, referring to denial of agreement of sale set up as defence in a suit for specific performance, it is observed in this ruling that objection that the plaintiff is not ready and willing to perform his part of the contract under agreement for sale, cannot stand. It was thus observed that the defendant could not have raised a plea relating to want of readiness and willingness on the part of the plaintiff to perform his part of the contract. 73. Further reliance is placed by the learned counsel for the appellant in this context in Silvey and others vs. Arun Varghese and another[(2008) 11 SCC 45] , apart from a judgment of Punjab & Haryana High Court in Santa Singh v. Binder Singh and others [2006 SCC OnLine P&H 442]. 74. Contentions are also advanced on behalf of the appellant, referring to the defence of 3rd respondent, who is subsequent purchaser of the suit property under Ex.B4 that she cannot raise such objection. Reliance is placed in this context in M. M.S.Investments, Madurai and others vs. V. Veerappan and others [(2007) 9 SCC 660] . In para-6 of this ruling, it is observed as under: 6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the specific Relief Act, 1963 (in short the Act) is not applicable. 75. In Jugraj Singh and another vs. Labh Singh and others[(1995) 2 SCC 31] in this respect it is observed in para 5 referring to the celebrated judgment in Gomathinayagam Pillai v. Palaniswami NadarAIR 1967 SC 868 ] as under: 5. This Court in Gomathinayagam Pillai v. Palaniswami Nadar quoting with approval Ardeshir case (AIR 1928 PC 208 ) had held as follows: But the respondent has claimed a decree for specific performance and it is for him to establish that he was , since the date of the contract, continuously ready and willing to perform his part of the contract. If he failed to do so, his claim for specific performance must fail. That plea is specifically available to the vendor/ defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers.... 76. Therefore, in the light of the above legal position, it is not open for the 3rd respondent to raise this plea. Thus, on the material it has to be held that the appellant did succeed in making out that he was ready and willing to perform his part of the contract under Ex.A1 at all material times against the 1st respondent. Thus, this point is answered. 7. Thus, the submissions advanced on behalf of the appellant i.e. subsequent purchaser were not taken into account on the premise that it would not be open to a subsequent purchaser to challenge the readiness and willingness on part of the plaintiff. The High Court had relied upon the decision of this Court rendered in Jugraj Singh and Another vs. Labh Singh and Others [(1995) 2 SCC 31] to come to such conclusion. 8. It must be stated here that the principles laid down in Jugraj Singh and Another (supra) were not accepted by a larger Bench of this Court. The relevant discussion in paragraph 6 in the case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and Another [(2000) 2 SCC428] was as under: 6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case [(1995) 2 SCC 31] is erroneous. 9. Learned counsel appearing for the plaintiff - respondent no.1 sought to support on facts the conclusion arrived by the High Court on the issue of readiness and willingness. 10. However, the fact remains that the entire perspective with which the matter was considered by the High Court was clearly erroneous and as the observations made by the High Court in paragraph 76 disclose, the High Court went on the footing that it was not open to the appellant i.e. subsequent purchaser to raise any submissions on the issue of readiness and willingness. Thus, the judgment under challenge clearly fell in serious error.
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8. It must be stated here that the principles laid down in Jugraj Singh and Another (supra) were not accepted by a larger Bench of this Court. The relevant discussion in paragraph 6 in the case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and Another [(2000) 2 SCC428] was as under:6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case [(1995) 2 SCC 31] is erroneous.10. However, the fact remains that the entire perspective with which the matter was considered by the High Court was clearly erroneous and as the observations made by the High Court in paragraph 76 disclose, the High Court went on the footing that it was not open to the appellant i.e. subsequent purchaser to raise any submissions on the issue of readiness and willingness. Thus, the judgment under challenge clearly fell in serious error.
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Karuna Singh Vs. State Of Nct Of Delhi & Anr | of this case, it is submitted, that this Court should issue appropriate directions to the Magistrate (Negotiable Instruments Act) so as to require him to effectively control the petitioner’s cross-examination (at the hands of the respondent no.2), as the petitioner’s fundamental rights are being violated. 5. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the petitioner, as also, the judgments relied upon by him. We are astonished at the submissions advanced at the hands of the learned counsel for the petitioner. The petitioner herein is seeking directions to the concerned Magistrate, as a matter of first instance at the hands of this Court. The submissions advanced at the hands of the learned counsel for the petitioner by themselves concede, that there is an alternative remedy available to the petitioner, yet he has chosen to come to the highest court of the land, under Article 32 of the Constitution of India. Even though the order passed by the Magistrate (Negotiable Instruments Act) dated 9.9.2009 has been assailed by the petitioner before the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure by filing Criminal M.C. No.3668 of 2009, and the said proceedings are still pending, the petitioner has chosen to approach this Court. While doing so, the petitioner has even cast aspersions on the High Court, by pleading and contending that the High Court had, till date, not taken a final decision in the matter. It would also be relevant to mention, that besides filing Criminal M.C. No.3668 of 2009, the petitioner has also filed a writ petition under Article 226 of the Constitution of India in the High Court at Delhi, wherein she had assailed the order passed by the Magistrate (Negotiable Instruments Act) dated 2.5.2011. In the aforesaid writ petition, the petitioner has admittedly sought directions to the Magistrate (Negotiable Instruments Act) to control the petitioner’s cross-examination (at the hands of the respondent no.2). The aforesaid writ petition is still pending consideration before the High Court. The High Court has stayed the payment of costs imposed on the petitioner. The grievance of the petitioner is, that the High Court had failed to stay the further cross- examination of the petitioner, with reference to the charge-sheet filed in Case FIR No.13 of 2004. Surprisingly, when the prayers made by the petitioner before this Court, are pending adjudication before the High Court at Delhi, the petitioner has approached this Court under Article 32 of the Constitution of India, without assailing any order passed by the High Court. This, in our considered view, amounts to gross misuse of the jurisdiction of this Court. Such a behaviour at the hands of the petitioner cannot be countenanced. The effort of the petitioner seems to be, to browbeat either respondent no.2, or the Magistrate (Negotiable Instruments Act), so that the proceedings progress as per the desire of the petitioner. In her aforesaid effort, the petitioner has also cast aspersions against the High Court.6. This is not a case where despite availability of an alternative remedy, the petitioner has approached this Court under its writ jurisdiction. This is a case where the petitioner has availed of her alternative remedies, and simultaneously on the same cause of action, she has approached the highest court of the land under Article 32 of the Constitution of India. This constitutes a gross abuse of the process of law. We are satisfied that an efficacious alternative remedy is available to a party which has initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881. In the present case the petitioner has approached the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure, and through a separate petition under Articles 226/227 of the Constitution of India. Both petitions are still pending before the High Court. It is not possible for us to accept that the fundamental rights of the petitioner under Articles 20(3) and 21 of the Constitution of India have been violated in any manner whatsoever, so as to enable him to approach this court, in the manner suggested. If the instant plea of the petitioner is accepted, the jurisdiction of this Court under Article 32 of the Constitution of India will become available against every action of a Magistrate, not only under the Negotiable Instruments Act, but also, in respect of criminal proceedings conducted under other statutory provisions.7. To the benefit of the petitioner, it also needs to be noticed, that reliance was placed on behalf of the petitioner on M/s.Mandvi Co-op. Bank Ltd. vs. Nimesh B. Thakore AIR 2010 SC 1402 . The instant reliance was placed on the basis of the merits of the controversy i.e., in support of the merits of the petitioner’s cause. Having gone through the judgment relied upon by the learned counsel for the petitioner, we find that the same is wholly inapplicable to this case. In Mandvi Coop. Bank’s case (supra) the accused on being summoned under Section 145(2) of the Negotiable Instruments Act, raised the plea, that inspite of the complainant having filed his evidence by way of an affidavit under Section 145(1), the complainant must be orally examined in chief all over again, before the accused is summoned or called upon to cross-examine the complainant. This Court while disposing of the aforesaid controversy interpreted Section 145(2) of the Negotiable Instruments Act to conclude, that a person who had preferred his evidence on affidavit, need not make an oral deposition in court, before the accused is summoned or is required to cross-examine him. This is not the issue in the present controversy. We are therefore satisfied, that the reliance placed by the learned counsel for the petitioner on Mandvi Coop. Bank’s case (supra) is wholly misconceived.8. In view of the above, we are of the view, that the petitioner has grossly abused the jurisdiction of this Court by approaching this Court under Article 32 of the Constitution of India. | 0[ds]In so far as the instant aspect of the matter is concerned, it was the case of the petitioner, that the High Court had failed to take any final decision in the matter. It was also submitted at the behest of the petitioner that the Magistrate (Negotiable Instruments Act) trying the complaint of the petitioner, had unfairly allowed the petitioner to bewith reference to the saidin Case FIR No.13 of 2004. A submission was also advanced at the behest of the petitioner, that the Magistrate (Negotiable Instruments Act) had failed to control the crossexamination of the petitioner (at the hands of the respondentare astonished at the submissions advanced at the hands of the learned counsel for the petitioner. The petitioner herein is seeking directions to the concerned Magistrate, as a matter of first instance at the hands of this Court. The submissions advanced at the hands of the learned counsel for the petitioner by themselves concede, that there is an alternative remedy available to the petitioner, yet he has chosen to come to the highest court of the land, under Article 32 of the Constitution of India. Even though the order passed by the Magistrate (Negotiable Instruments Act) dated 9.9.2009 has been assailed by the petitioner before the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure by filing Criminal M.C. No.3668 of 2009, and the said proceedings are still pending, the petitioner has chosen to approach this Court. While doing so, the petitioner has even cast aspersions on the High Court, by pleading and contending that the High Court had, till date, not taken a final decision in the matter. It would also be relevant to mention, that besides filing Criminal M.C. No.3668 of 2009, the petitioner has also filed a writ petition under Article 226 of the Constitution of India in the High Court at Delhi, wherein she had assailed the order passed by the Magistrate (Negotiable Instruments Act) dated 2.5.2011. In the aforesaid writ petition, the petitioner has admittedly sought directions to the Magistrate (Negotiable Instruments Act) to control then (at the hands of the respondent no.2). The aforesaid writ petition is still pending consideration before the High Court. The High Court has stayed the payment of costs imposed on the petitioner. The grievance of the petitioner is, that the High Court had failed to stay the further crossexamination of the petitioner, with reference to thefiled in Case FIR No.13 of 2004. Surprisingly, when the prayers made by the petitioner before this Court, are pending adjudication before the High Court at Delhi, the petitioner has approached this Court under Article 32 of the Constitution of India, without assailing any order passed by the High Court. This, in our considered view, amounts to gross misuse of the jurisdiction of this Court. Such a behaviour at the hands of the petitioner cannot be countenanced. The effort of the petitioner seems to be, to browbeat either respondent no.2, or the Magistrate (Negotiable Instruments Act), so that the proceedings progress as per the desire of the petitioner. In her aforesaid effort, the petitioner has also cast aspersions against the High Court.6. This is not a case where despite availability of an alternative remedy, the petitioner has approached this Court under its writ jurisdiction. This is a case where the petitioner has availed of her alternative remedies, and simultaneously on the same cause of action, she has approached the highest court of the land under Article 32 of the Constitution of India. This constitutes a gross abuse of the process of law. We are satisfied that an efficacious alternative remedy is available to a party which has initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881. In the present case the petitioner has approached the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure, and through a separate petition under Articles 226/227 of the Constitution of India. Both petitions are still pending before the High Court. It is not possible for us to accept that the fundamental rights of the petitioner under Articles 20(3) and 21 of the Constitution of India have been violated in any manner whatsoever, so as to enable him to approach this court, in the manner suggested. If the instant plea of the petitioner is accepted, the jurisdiction of this Court under Article 32 of the Constitution of India will become available against every action of a Magistrate, not only under the Negotiable Instruments Act, but also, in respect of criminal proceedings conducted under other statutory provisions.7. To the benefit of the petitioner, it also needs to be noticed, that reliance was placed on behalf of the petitioner on M/s.MandviBank Ltd. vs. Nimesh B. Thakore AIR 2010 SC 1402 . The instant reliance was placed on the basis of the merits of the controversy i.e., in support of the merits of thecause. Having gone through the judgment relied upon by the learned counsel for the petitioner, we find that the same is wholly inapplicable to this case. In Mandvi Coop.case (supra) the accused on being summoned under Section 145(2) of the Negotiable Instruments Act, raised the plea, that inspite of the complainant having filed his evidence by way of an affidavit under Section 145(1), the complainant must be orally examined in chief all over again, before the accused is summoned or called upon tothe complainant. This Court while disposing of the aforesaid controversy interpreted Section 145(2) of the Negotiable Instruments Act to conclude, that a person who had preferred his evidence on affidavit, need not make an oral deposition in court, before the accused is summoned or is required tohim. This is not the issue in the present controversy. We are therefore satisfied, that the reliance placed by the learned counsel for the petitioner on Mandvi Coop.case (supra) is wholly misconceived.8. In view of the above, we are of the view, that the petitioner has grossly abused the jurisdiction of this Court by approaching this Court under Article 32 of the Constitution of India. | 0 | 2,416 | 1,135 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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of this case, it is submitted, that this Court should issue appropriate directions to the Magistrate (Negotiable Instruments Act) so as to require him to effectively control the petitioner’s cross-examination (at the hands of the respondent no.2), as the petitioner’s fundamental rights are being violated. 5. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the petitioner, as also, the judgments relied upon by him. We are astonished at the submissions advanced at the hands of the learned counsel for the petitioner. The petitioner herein is seeking directions to the concerned Magistrate, as a matter of first instance at the hands of this Court. The submissions advanced at the hands of the learned counsel for the petitioner by themselves concede, that there is an alternative remedy available to the petitioner, yet he has chosen to come to the highest court of the land, under Article 32 of the Constitution of India. Even though the order passed by the Magistrate (Negotiable Instruments Act) dated 9.9.2009 has been assailed by the petitioner before the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure by filing Criminal M.C. No.3668 of 2009, and the said proceedings are still pending, the petitioner has chosen to approach this Court. While doing so, the petitioner has even cast aspersions on the High Court, by pleading and contending that the High Court had, till date, not taken a final decision in the matter. It would also be relevant to mention, that besides filing Criminal M.C. No.3668 of 2009, the petitioner has also filed a writ petition under Article 226 of the Constitution of India in the High Court at Delhi, wherein she had assailed the order passed by the Magistrate (Negotiable Instruments Act) dated 2.5.2011. In the aforesaid writ petition, the petitioner has admittedly sought directions to the Magistrate (Negotiable Instruments Act) to control the petitioner’s cross-examination (at the hands of the respondent no.2). The aforesaid writ petition is still pending consideration before the High Court. The High Court has stayed the payment of costs imposed on the petitioner. The grievance of the petitioner is, that the High Court had failed to stay the further cross- examination of the petitioner, with reference to the charge-sheet filed in Case FIR No.13 of 2004. Surprisingly, when the prayers made by the petitioner before this Court, are pending adjudication before the High Court at Delhi, the petitioner has approached this Court under Article 32 of the Constitution of India, without assailing any order passed by the High Court. This, in our considered view, amounts to gross misuse of the jurisdiction of this Court. Such a behaviour at the hands of the petitioner cannot be countenanced. The effort of the petitioner seems to be, to browbeat either respondent no.2, or the Magistrate (Negotiable Instruments Act), so that the proceedings progress as per the desire of the petitioner. In her aforesaid effort, the petitioner has also cast aspersions against the High Court.6. This is not a case where despite availability of an alternative remedy, the petitioner has approached this Court under its writ jurisdiction. This is a case where the petitioner has availed of her alternative remedies, and simultaneously on the same cause of action, she has approached the highest court of the land under Article 32 of the Constitution of India. This constitutes a gross abuse of the process of law. We are satisfied that an efficacious alternative remedy is available to a party which has initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881. In the present case the petitioner has approached the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure, and through a separate petition under Articles 226/227 of the Constitution of India. Both petitions are still pending before the High Court. It is not possible for us to accept that the fundamental rights of the petitioner under Articles 20(3) and 21 of the Constitution of India have been violated in any manner whatsoever, so as to enable him to approach this court, in the manner suggested. If the instant plea of the petitioner is accepted, the jurisdiction of this Court under Article 32 of the Constitution of India will become available against every action of a Magistrate, not only under the Negotiable Instruments Act, but also, in respect of criminal proceedings conducted under other statutory provisions.7. To the benefit of the petitioner, it also needs to be noticed, that reliance was placed on behalf of the petitioner on M/s.Mandvi Co-op. Bank Ltd. vs. Nimesh B. Thakore AIR 2010 SC 1402 . The instant reliance was placed on the basis of the merits of the controversy i.e., in support of the merits of the petitioner’s cause. Having gone through the judgment relied upon by the learned counsel for the petitioner, we find that the same is wholly inapplicable to this case. In Mandvi Coop. Bank’s case (supra) the accused on being summoned under Section 145(2) of the Negotiable Instruments Act, raised the plea, that inspite of the complainant having filed his evidence by way of an affidavit under Section 145(1), the complainant must be orally examined in chief all over again, before the accused is summoned or called upon to cross-examine the complainant. This Court while disposing of the aforesaid controversy interpreted Section 145(2) of the Negotiable Instruments Act to conclude, that a person who had preferred his evidence on affidavit, need not make an oral deposition in court, before the accused is summoned or is required to cross-examine him. This is not the issue in the present controversy. We are therefore satisfied, that the reliance placed by the learned counsel for the petitioner on Mandvi Coop. Bank’s case (supra) is wholly misconceived.8. In view of the above, we are of the view, that the petitioner has grossly abused the jurisdiction of this Court by approaching this Court under Article 32 of the Constitution of India.
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is concerned, it was the case of the petitioner, that the High Court had failed to take any final decision in the matter. It was also submitted at the behest of the petitioner that the Magistrate (Negotiable Instruments Act) trying the complaint of the petitioner, had unfairly allowed the petitioner to bewith reference to the saidin Case FIR No.13 of 2004. A submission was also advanced at the behest of the petitioner, that the Magistrate (Negotiable Instruments Act) had failed to control the crossexamination of the petitioner (at the hands of the respondentare astonished at the submissions advanced at the hands of the learned counsel for the petitioner. The petitioner herein is seeking directions to the concerned Magistrate, as a matter of first instance at the hands of this Court. The submissions advanced at the hands of the learned counsel for the petitioner by themselves concede, that there is an alternative remedy available to the petitioner, yet he has chosen to come to the highest court of the land, under Article 32 of the Constitution of India. Even though the order passed by the Magistrate (Negotiable Instruments Act) dated 9.9.2009 has been assailed by the petitioner before the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure by filing Criminal M.C. No.3668 of 2009, and the said proceedings are still pending, the petitioner has chosen to approach this Court. While doing so, the petitioner has even cast aspersions on the High Court, by pleading and contending that the High Court had, till date, not taken a final decision in the matter. It would also be relevant to mention, that besides filing Criminal M.C. No.3668 of 2009, the petitioner has also filed a writ petition under Article 226 of the Constitution of India in the High Court at Delhi, wherein she had assailed the order passed by the Magistrate (Negotiable Instruments Act) dated 2.5.2011. In the aforesaid writ petition, the petitioner has admittedly sought directions to the Magistrate (Negotiable Instruments Act) to control then (at the hands of the respondent no.2). The aforesaid writ petition is still pending consideration before the High Court. The High Court has stayed the payment of costs imposed on the petitioner. The grievance of the petitioner is, that the High Court had failed to stay the further crossexamination of the petitioner, with reference to thefiled in Case FIR No.13 of 2004. Surprisingly, when the prayers made by the petitioner before this Court, are pending adjudication before the High Court at Delhi, the petitioner has approached this Court under Article 32 of the Constitution of India, without assailing any order passed by the High Court. This, in our considered view, amounts to gross misuse of the jurisdiction of this Court. Such a behaviour at the hands of the petitioner cannot be countenanced. The effort of the petitioner seems to be, to browbeat either respondent no.2, or the Magistrate (Negotiable Instruments Act), so that the proceedings progress as per the desire of the petitioner. In her aforesaid effort, the petitioner has also cast aspersions against the High Court.6. This is not a case where despite availability of an alternative remedy, the petitioner has approached this Court under its writ jurisdiction. This is a case where the petitioner has availed of her alternative remedies, and simultaneously on the same cause of action, she has approached the highest court of the land under Article 32 of the Constitution of India. This constitutes a gross abuse of the process of law. We are satisfied that an efficacious alternative remedy is available to a party which has initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881. In the present case the petitioner has approached the High Court at Delhi under Sections 482 and 483 of the Code of Criminal Procedure, and through a separate petition under Articles 226/227 of the Constitution of India. Both petitions are still pending before the High Court. It is not possible for us to accept that the fundamental rights of the petitioner under Articles 20(3) and 21 of the Constitution of India have been violated in any manner whatsoever, so as to enable him to approach this court, in the manner suggested. If the instant plea of the petitioner is accepted, the jurisdiction of this Court under Article 32 of the Constitution of India will become available against every action of a Magistrate, not only under the Negotiable Instruments Act, but also, in respect of criminal proceedings conducted under other statutory provisions.7. To the benefit of the petitioner, it also needs to be noticed, that reliance was placed on behalf of the petitioner on M/s.MandviBank Ltd. vs. Nimesh B. Thakore AIR 2010 SC 1402 . The instant reliance was placed on the basis of the merits of the controversy i.e., in support of the merits of thecause. Having gone through the judgment relied upon by the learned counsel for the petitioner, we find that the same is wholly inapplicable to this case. In Mandvi Coop.case (supra) the accused on being summoned under Section 145(2) of the Negotiable Instruments Act, raised the plea, that inspite of the complainant having filed his evidence by way of an affidavit under Section 145(1), the complainant must be orally examined in chief all over again, before the accused is summoned or called upon tothe complainant. This Court while disposing of the aforesaid controversy interpreted Section 145(2) of the Negotiable Instruments Act to conclude, that a person who had preferred his evidence on affidavit, need not make an oral deposition in court, before the accused is summoned or is required tohim. This is not the issue in the present controversy. We are therefore satisfied, that the reliance placed by the learned counsel for the petitioner on Mandvi Coop.case (supra) is wholly misconceived.8. In view of the above, we are of the view, that the petitioner has grossly abused the jurisdiction of this Court by approaching this Court under Article 32 of the Constitution of India.
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JOSEPH SHINE Vs. UNION OF INDIA | commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra- marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide. [Emphasis added] 51. In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat (2015) 11 SCC 753 , has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :- 21. …True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted. [Emphasis added] 52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC. 53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. 54. We may also usefully note here that adultery as a crime is no more prevalent in Peoples Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said act should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness. 55. In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law. 56. As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path. | 1[ds]6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court.7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitutionf India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional question under Article 228 of the Constitution. The Constitution Bench referring to Section 497 held thus:-3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this. It runs— In such case the wif e shall not be punishable as an abettor. It is said that this offendsThe portion of Article 15 on which the appellant relies is this:The State shall not discriminate against any citizen on grounds only of ... sexBut what he overlooks is that that is subject to clause (3) which runs—Nothing in this article shall prevent the State from making any special provision for womenThe provision complained of is a special provision and it is made for women, therefore it is saved by clause (3)4. It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibiteds general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code6. The appellant is not a citizen of India. It was argued that he could not invokeArticles 14 and 15 for that reason. The High Court held otherwise. It is not necessary for us to decide this question in view of our decision on the other issue.On a reading of the aforesaid passages, it is manifest that the Court treated the provision to be a special provision made for women and, therefore, saved by clause (3) of Article 15. Thus, the Court proceeded on the foundation of affirmative action.8. In this context, we may refer to the observation made by the Constitution Bench in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (2005) 2 SCC 673 while making a reference to a larger Bench. The said order reads thus:-12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted(3)The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754 and Hansoli Devi Union of IndiaAnr. v. Hansoli DeviOrs., (2002) 7 SCC 273 . n the light of the aforesaid order, it was necessary to list the matter before a Constitution Bench consisting of five Judges. As noted earlier, considering the manner in which we intend to deal with the matter, it is not necessary to refer to a larger Bench11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable.13. In Sowmithri Vishnu (supra), a petition preferred undere 32 of the Constitutiond the validity of Section 497 IPC. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench that Section 497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women. That apart, the submission was advanced that Section 497 is a flagrant instance of gender discrimination, legislative despotism and male chauvinism. At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind ofromantic paternalism which stems from the assumption that women, like chattels, are the property of men.14. The Court referred to the submissions and held thus:-…..The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. For example, an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under Section 392 of the Penal Code but the offence of adultery should be punishable with a sentence of five years only: Breaking a matrimonial home is no less serious a crime than breaking open a house. Such arguments go to the policy of the law, not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation which the society has undergone….Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides that the wife shall not be punishable even as an abettor. No grievance can then be made that the Section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, the same point is reverted to; who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.15. The Court further held:-…..Since Section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad. Counsel is right that Section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the court. In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional as violating Article 21.After so stating, the Court placed reliance on Yusuf Abdul Aziz (supra) and held that the same does not offend Articles 14 and 15 of the Constitution ans 14 and 15 of the Constitutiond opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.In Shayara Bano v. Union of India and others (2017) 9 SCC 1 , the majority speaking through Nariman, J., ruled thus :-60. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution Bench decisions cannot possibly be said to be good law61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in Indiaf India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the discrimination aspect of Article 14, and evolved a rule by which subjects could be classified. If 347 the classification was in telligible having regard to the object sought to be achieved, it would pass muster unders anti- discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that:50......Overemph asis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious contentHe referred to the doctrine of classification as a subsidia ry rule evolved by courts to give practical content to the said Article.63. In the pre-1974 era, the judgments of this Court did refer to the rule of law or positive aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703 , this Court held:In this context it is impor tant to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, 348 discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey — Law of the Constitution — 10th Edn., Introduction cx). Law h as reached its finest moments, stated Douglas, J. in United States v. Wunderlick [342 US 98],9.....when it has freed man from the unlimited discretion of some ruler…. Where discretion, is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes [(1770) 4 Burr. 2528 at 2539],.....means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague, and fancifulThis was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India. 19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram (1968) 1 SCR 349 , Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 , Maneka Gandhi v. Union of India (1978) 1 SCC 248 , A.L. Kalra v. Project and Equipment Corporation of India Ltd. (1984) 3 SCC 316 , Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 , K.R. Lakshmanan v. State of T.N. (1996) 2 SCC 226 and two other Constitution Bench judgments in Mithu v. State of Punjab (1983) 2 SCC 277 and Sunil Batra v. Delhi Administration (1978) 4 SCC 494 and, eventually, came to hold thus:-It is, therefore, clear f rom a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be arbitrary......The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. 20. We respectfully concur with the said view.22. We may now proceed to test the provision on the touchstone of the aforesaid principles. On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary. 25. In Arun Kumar Agrawal and another v. National Insurance Company Limited and others (2010) 9 SCC 218 , the issue related to the criteria for determination of compensation payable to the dependents of a woman who died in road accident. She did not have a regular income. Singhvi, J. rejected the stand relating to determination of compensation by comparing a house wife to that of a house keeper or a servant or an employee who works for a fixed period. The learned Judge thought it unjust, unfair and inappropriate. In that context, the learned Judge stated:-26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employers work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.26. Ganguly, J., in his concurring opinion, referred to the Australian Family Property Law and opined that the said law had adopted a very gender sensitive approach. The learned Judge reproduced:-the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent.32. In Voluntary Health Association of Punjab v. Union of India (2013) 4 SCC 1 , one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:-21 . When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton treated her to be the best of all Gods work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis de Tocqueville:If I were asked … to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: To the superiority of their women22. At this stage, I may with profit reproduce two paragraphs from Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110 : (SCC pp. 113-14, paras 33. Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked =I am glad that I am not a man; for then I should have to marry a woman, there was wit in it. When Shakespeare wrote, =Age cannot wither her; nor custom stale, her infinite variety, there again was wit. Notwithstanding that these writers have cried hoarse for respect for =woman, notwithstanding that Schiller said =Honour women! They entwine and weave heavenly roses in our earthly life and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against =woman continues to rise and has, today undoubtedly, risen to alarming proportions4. It is unfortunate that in an age where people are described as civilised, crime against „female is committed even when the child is in the womb as the „female foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.3. In Madhu Kishwar v. State of Bihar (1996) 5 SCC 125 this Court had stated that Indian women have suffered and are suffering discrimination in silence8. … Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. (SCC p. 148, para 28)24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility:Dowry is an intractabl e disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death25. Long back, Charles Fourier had stated:The extension of womens rights is the basic principle of all social progress26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case 4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:Yatra tastu na pujyante sarvastatraphalah kriyahA free translation of the aforesaid is reproduced below:All the actions become unproductive in a place, where they are not treated with proper respect and dignity27. Another wise man of the past had his own way of putting it:Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaihA free translation of the aforesaid is as follows:The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour28. Yet again, the sagacity got reflected in following lines:Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisaA free translation of the aforesaid is reproduced below:The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman29. From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society:A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom — to develop her personality to the full as a man. When she marries, she does not become the husbands servant but his equal partner. If his work is more important in life of the community, hers is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husbands monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 which, while laying down that privacy is a facet of Article 21 of the Constitution, lays immense stress on the dignity of an individual. In the said judgment, it has been held:-108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence | 1 | 15,192 | 5,637 | ### Instruction:
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commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra- marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide. [Emphasis added] 51. In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat (2015) 11 SCC 753 , has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :- 21. …True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted. [Emphasis added] 52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC. 53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. 54. We may also usefully note here that adultery as a crime is no more prevalent in Peoples Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said act should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness. 55. In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law. 56. As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path.
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glad that I am not a man; for then I should have to marry a woman, there was wit in it. When Shakespeare wrote, =Age cannot wither her; nor custom stale, her infinite variety, there again was wit. Notwithstanding that these writers have cried hoarse for respect for =woman, notwithstanding that Schiller said =Honour women! They entwine and weave heavenly roses in our earthly life and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against =woman continues to rise and has, today undoubtedly, risen to alarming proportions4. It is unfortunate that in an age where people are described as civilised, crime against „female is committed even when the child is in the womb as the „female foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.3. In Madhu Kishwar v. State of Bihar (1996) 5 SCC 125 this Court had stated that Indian women have suffered and are suffering discrimination in silence8. … Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. (SCC p. 148, para 28)24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility:Dowry is an intractabl e disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death25. Long back, Charles Fourier had stated:The extension of womens rights is the basic principle of all social progress26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case 4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:Yatra tastu na pujyante sarvastatraphalah kriyahA free translation of the aforesaid is reproduced below:All the actions become unproductive in a place, where they are not treated with proper respect and dignity27. Another wise man of the past had his own way of putting it:Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaihA free translation of the aforesaid is as follows:The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour28. Yet again, the sagacity got reflected in following lines:Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisaA free translation of the aforesaid is reproduced below:The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman29. From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society:A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom — to develop her personality to the full as a man. When she marries, she does not become the husbands servant but his equal partner. If his work is more important in life of the community, hers is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husbands monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 which, while laying down that privacy is a facet of Article 21 of the Constitution, lays immense stress on the dignity of an individual. In the said judgment, it has been held:-108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence
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The Management Of State Bank Of India Vs. Smita Sharad Deshmukh | materials on record and are not perverse....."5. The evidence led by the employee, as rightly appreciated by the Industrial Tribunal, would clearly show that she had the knowledge that the document she produced was a forged one. Therefore, there was no requirement on the part of the Management to establish whether she had known, at the time of submission of the document, that it was a forged one.6. It is a well-settled principle that the High Court will not re-appreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at. (See - Union of India v. H.C. Goel, (1964) 4 SCR 718 ) .7. In the case of Bank of India and another v. Degala Suryanarayana, 1999(3) S.C.T. 669 : (1999) 5 SCC 762 after referring to H.C. Goel case (supra), this Court held at paragraph-11 :-"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. ..."8. We do not think it necessary to refer to any other judgments on the same point, since the same principle has been only followed and reiterated in all those decisions.9. In the case before us, it is an admitted position that the certificate produced by the employee is a forged one. It has been categorically found by the Industrial Tribunal, on the basis of evidence, that the employee was fully aware of the fact that the document was a forged one. In such circumstances, there is no basis at all for the stand taken by the High Court that the Management did not establish that the employee had knowledge about the certificate being a forged one.10. Despite the factual and legal position as above, we had made one more attempt for the verification of the certificate from the Institute of Bankers. Thus, on 08.08.2016, this Court passed the following order:"The Deputy Director (Examinations) of The Indian Institute of Bankers shall inform this Court as to whether the candidate Mrs. S. S. Deshmukh (Membership No. 5880536) had actually applied for revaluation of Part II of CAIIB Examination in the year 2000 and what is the action taken on that application and also whether the action thus taken, was informed to Mrs. Deshmukh.Needless to say that in the report, it would be made clear that whether Mrs. Deshmukh had actually passed in the revaluation.The report shall be submitted to the Registrar of this Court within four weeks from today.The Registry shall communicate a copy of this order to the Deputy Director, Indian Institute of Bankers forthwith.In addition, a copy of this order be given Dasti to the parties for communication.Post on 21.09.2016."11. The Institute has, by its letter dated 03.09.2016, informed this Court that:"Ref : IIBF/CO/EXAM/4832/20163rd September,2016The RegistrarSupreme Court of India,Tilak Marg,New Delhi-110 201(India)Sir,Re: SLP (C) No. 33070/2013In the matter of -The Management of State Bank of Indiav/sSmita Sharad Deshmukh & Another.This has reference to order date the 8th August, 2016 by the Honble Court in the captioned matter interalia seeking details from the Institute as to whether the candidate Mrs. S.S. Deshmukh (Membership No. 5880536) had actually applied for revaluation of part II of CAIIB Examination.In this connection this is to inform that Mrs. Deshmukh had appeared for following 2 subjects in May/June 2000 Examination conducted by the Institute and has secured the marks shown against each of the subjects.1. Practice & Law of Banking - 45 Marks2. Indian Economics Problem - 23 MarksThis is to inform further that the Institute has provision only for verification of marks and no request was received from Mrs. Deshmukh for verification of marks in connection with above said examination.Thanking you,Yours faithfully,(Joint Director)Examination"12. Despite the clear position as above, the employee filed a response on 13.01.2017 reiterating that she had "... actually applied for revaluation of Part II of CAIIB Examination in the year 2000 ...". A copy of the application also was produced along with reply as Annexure-R1. It is a handwritten letter by the Management-Bank to the Institute of Bankers on 08.09.2000 but enclosing a draft dated 14.09.2000. There is also an alleged endorsement of receipt of the letter by the Institute on 18.09.2000 on hand delivery. It may be noted that the forged certificate of pass in the examination and the memorandum accompanying it are dated 04.09.2000. One wonders as to what was the need for revaluation once a candidate had been declared successful on 04.09.2000, leave alone the anachronic error on the dates on the application and the draft! We reluctantly refrain from making any further observations in this regard.13. Though learned counsel for the employee made a persuasive attempt for modification of punishment on the ground of disproportionality, in view of the conduct of the employee which we have referred to above, we are not inclined to take a different view from that taken by the Disciplinary Authority, Appellate Authority and the Industrial Tribunal-cum-Labour Court. | 1[ds]4. We find it difficult to appreciate the strange stand taken by the High Court. The Labour Court had clearly analysed the entire evidence and had come to the conclusion that the employee was fully aware of the forgery. The Tribunal took note of the fact that she had produced a copy of the postal receipt of dispatching the certificate from the Institute of Bankers in her evidence but failed to explain the source of the postal receipt. It also took note of the fact that the alleged certificate of having passed the examination is dated 04.09.2000. If that be so, there was no occasion for asking for any re-verification of the marks by filing an application dated 08.09.2000. Still further, the Court extensively referred to the reply furnished by the Institute of Bankers and came to the conclusion that the certificate was a forged one.The evidence led by the employee, as rightly appreciated by the Industrial Tribunal, would clearly show that she had the knowledge that the document she produced was a forged one. Therefore, there was no requirement on the part of the Management to establish whether she had known, at the time of submission of the document, that it was a forged one.6. It is a well-settled principle that the High Court will not re-appreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at.We do not think it necessary to refer to any other judgments on the same point, since the same principle has been only followed and reiterated in all those decisions.9. In the case before us, it is an admitted position that the certificate produced by the employee is a forged one. It has been categorically found by the Industrial Tribunal, on the basis of evidence, that the employee was fully aware of the fact that the document was a forged one. In such circumstances, there is no basis at all for the stand taken by the High Court that the Management did not establish that the employee had knowledge about the certificate being a forged one.Despite the clear position as above, the employee filed a response on 13.01.2017 reiterating that she had "... actually applied for revaluation of Part II of CAIIB Examination in the year 2000 ...". A copy of the application also was produced along with reply as Annexure-R1. It is a handwritten letter by the Management-Bank to the Institute of Bankers on 08.09.2000 but enclosing a draft dated 14.09.2000. There is also an alleged endorsement of receipt of the letter by the Institute on 18.09.2000 on hand delivery. It may be noted that the forged certificate of pass in the examination and the memorandum accompanying it are dated 04.09.2000. One wonders as to what was the need for revaluation once a candidate had been declared successful on 04.09.2000, leave alone the anachronic error on the dates on the application and the draft! We reluctantly refrain from making any further observations in this regard.13. Though learned counsel for the employee made a persuasive attempt for modification of punishment on the ground of disproportionality, in view of the conduct of the employee which we have referred to above, we are not inclined to take a different view from that taken by the Disciplinary Authority, Appellate Authority and the Industrial Tribunal-cum-Labour Court. | 1 | 2,258 | 629 | ### Instruction:
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materials on record and are not perverse....."5. The evidence led by the employee, as rightly appreciated by the Industrial Tribunal, would clearly show that she had the knowledge that the document she produced was a forged one. Therefore, there was no requirement on the part of the Management to establish whether she had known, at the time of submission of the document, that it was a forged one.6. It is a well-settled principle that the High Court will not re-appreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at. (See - Union of India v. H.C. Goel, (1964) 4 SCR 718 ) .7. In the case of Bank of India and another v. Degala Suryanarayana, 1999(3) S.C.T. 669 : (1999) 5 SCC 762 after referring to H.C. Goel case (supra), this Court held at paragraph-11 :-"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. ..."8. We do not think it necessary to refer to any other judgments on the same point, since the same principle has been only followed and reiterated in all those decisions.9. In the case before us, it is an admitted position that the certificate produced by the employee is a forged one. It has been categorically found by the Industrial Tribunal, on the basis of evidence, that the employee was fully aware of the fact that the document was a forged one. In such circumstances, there is no basis at all for the stand taken by the High Court that the Management did not establish that the employee had knowledge about the certificate being a forged one.10. Despite the factual and legal position as above, we had made one more attempt for the verification of the certificate from the Institute of Bankers. Thus, on 08.08.2016, this Court passed the following order:"The Deputy Director (Examinations) of The Indian Institute of Bankers shall inform this Court as to whether the candidate Mrs. S. S. Deshmukh (Membership No. 5880536) had actually applied for revaluation of Part II of CAIIB Examination in the year 2000 and what is the action taken on that application and also whether the action thus taken, was informed to Mrs. Deshmukh.Needless to say that in the report, it would be made clear that whether Mrs. Deshmukh had actually passed in the revaluation.The report shall be submitted to the Registrar of this Court within four weeks from today.The Registry shall communicate a copy of this order to the Deputy Director, Indian Institute of Bankers forthwith.In addition, a copy of this order be given Dasti to the parties for communication.Post on 21.09.2016."11. The Institute has, by its letter dated 03.09.2016, informed this Court that:"Ref : IIBF/CO/EXAM/4832/20163rd September,2016The RegistrarSupreme Court of India,Tilak Marg,New Delhi-110 201(India)Sir,Re: SLP (C) No. 33070/2013In the matter of -The Management of State Bank of Indiav/sSmita Sharad Deshmukh & Another.This has reference to order date the 8th August, 2016 by the Honble Court in the captioned matter interalia seeking details from the Institute as to whether the candidate Mrs. S.S. Deshmukh (Membership No. 5880536) had actually applied for revaluation of part II of CAIIB Examination.In this connection this is to inform that Mrs. Deshmukh had appeared for following 2 subjects in May/June 2000 Examination conducted by the Institute and has secured the marks shown against each of the subjects.1. Practice & Law of Banking - 45 Marks2. Indian Economics Problem - 23 MarksThis is to inform further that the Institute has provision only for verification of marks and no request was received from Mrs. Deshmukh for verification of marks in connection with above said examination.Thanking you,Yours faithfully,(Joint Director)Examination"12. Despite the clear position as above, the employee filed a response on 13.01.2017 reiterating that she had "... actually applied for revaluation of Part II of CAIIB Examination in the year 2000 ...". A copy of the application also was produced along with reply as Annexure-R1. It is a handwritten letter by the Management-Bank to the Institute of Bankers on 08.09.2000 but enclosing a draft dated 14.09.2000. There is also an alleged endorsement of receipt of the letter by the Institute on 18.09.2000 on hand delivery. It may be noted that the forged certificate of pass in the examination and the memorandum accompanying it are dated 04.09.2000. One wonders as to what was the need for revaluation once a candidate had been declared successful on 04.09.2000, leave alone the anachronic error on the dates on the application and the draft! We reluctantly refrain from making any further observations in this regard.13. Though learned counsel for the employee made a persuasive attempt for modification of punishment on the ground of disproportionality, in view of the conduct of the employee which we have referred to above, we are not inclined to take a different view from that taken by the Disciplinary Authority, Appellate Authority and the Industrial Tribunal-cum-Labour Court.
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4. We find it difficult to appreciate the strange stand taken by the High Court. The Labour Court had clearly analysed the entire evidence and had come to the conclusion that the employee was fully aware of the forgery. The Tribunal took note of the fact that she had produced a copy of the postal receipt of dispatching the certificate from the Institute of Bankers in her evidence but failed to explain the source of the postal receipt. It also took note of the fact that the alleged certificate of having passed the examination is dated 04.09.2000. If that be so, there was no occasion for asking for any re-verification of the marks by filing an application dated 08.09.2000. Still further, the Court extensively referred to the reply furnished by the Institute of Bankers and came to the conclusion that the certificate was a forged one.The evidence led by the employee, as rightly appreciated by the Industrial Tribunal, would clearly show that she had the knowledge that the document she produced was a forged one. Therefore, there was no requirement on the part of the Management to establish whether she had known, at the time of submission of the document, that it was a forged one.6. It is a well-settled principle that the High Court will not re-appreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at.We do not think it necessary to refer to any other judgments on the same point, since the same principle has been only followed and reiterated in all those decisions.9. In the case before us, it is an admitted position that the certificate produced by the employee is a forged one. It has been categorically found by the Industrial Tribunal, on the basis of evidence, that the employee was fully aware of the fact that the document was a forged one. In such circumstances, there is no basis at all for the stand taken by the High Court that the Management did not establish that the employee had knowledge about the certificate being a forged one.Despite the clear position as above, the employee filed a response on 13.01.2017 reiterating that she had "... actually applied for revaluation of Part II of CAIIB Examination in the year 2000 ...". A copy of the application also was produced along with reply as Annexure-R1. It is a handwritten letter by the Management-Bank to the Institute of Bankers on 08.09.2000 but enclosing a draft dated 14.09.2000. There is also an alleged endorsement of receipt of the letter by the Institute on 18.09.2000 on hand delivery. It may be noted that the forged certificate of pass in the examination and the memorandum accompanying it are dated 04.09.2000. One wonders as to what was the need for revaluation once a candidate had been declared successful on 04.09.2000, leave alone the anachronic error on the dates on the application and the draft! We reluctantly refrain from making any further observations in this regard.13. Though learned counsel for the employee made a persuasive attempt for modification of punishment on the ground of disproportionality, in view of the conduct of the employee which we have referred to above, we are not inclined to take a different view from that taken by the Disciplinary Authority, Appellate Authority and the Industrial Tribunal-cum-Labour Court.
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Karimtharuvi Tea Estate Ltd Vs. State Of Kerala | year, even if the assessment is actually made after the amendments come into force.9. In Scindia Steam Navigation Co. Ltd. v. Commr. of Income-tax, (1954) 26 ITR 686 : (AIR 1955 Bom 230 ), a Division Bench of the Bombay High Court, consisting of Chagla, C. J., and Tendolkar, J., considered the question as to the effect of an amendment which came into force after the commencement of financial year. The facts in that case were these. The assessees ship was lost as a result of enemy action. The Government paid the assessee in 1944 a certain amount as compensation which exceeded the original cost of the ship. The Income-tax Officer included the difference between the original cost and the written down value of the ship in the total income of the assessee for the assessment year 1946-47. The Tribunal upheld that decision and referred the question, whether the sum representing the difference between the original cost and the written down value was properly included in the assessees total income computed for the assessment year 1946-47. It was argued that the fourth proviso to S. 10 (2) (vii) of the Income-tax act (inserted by the Amendment Act of 1946 with effect from May 4, 1946) under which the inclusion of the amount was justified by the department, had no application to the case.10. The learned Judges held that as it was the Finance Act of 1946 that imposed the tax for the assessment year 1946-47, the total income had to be computed in accordance with the provisions of the Income-tax Act as on April 1, 1946; that as the amendments made by the Amendment Act of 1946 with effect from May 4, 1946 were not retrospective, they could not be taken into consideration merely because the assessee was assessed after that date; and that the assessee was not liable to pay tax on the sum because the fourth proviso to S. 10 (2) (vii) of the Income-tax Act under which it was sought to be taxed was not in force in respect of the assessment year 1946-47.11. This Court affirmed this decision in Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., (1962) 1 SCR 788 : (1961) 42 ITR 589 : (AIR 1961 SC 1633 ), where it was stated at p. 816 (of SCR) : (at p. 1646 of AIR), as follows :"On the merits, the appellant had very little to say. He sought to contend that the proviso though it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect."12. In Commr. of Sales Tax, Uttar Pradesh v. Modi Sugar Mills Ltd., (1961) 2 SCR 189 : (AIR 1961 SC 1047 ), this Court held by a Majority at p. 199 (of SCR) : (at p. 1051 of AIR), As follows :"A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field. The turnover of the previous year is fictionally made the turnover of the year of assessment : it is not the actual or the real turnover of the year of assessment. By the imposition of a different tariff in the course of the year, the incidence of tax liability may competently be altered by the Legislature, but for effectuating that alteration, the Legislature must devise machinery for enforcing it against the tax payer and if the Legislature has failed to do so, the Court cannot resort to a fiction which is not prescribed by the Legislature and seek to effectuate that alteration by devising machinery not found in the statute."13. In the instant case, there is no escape from the conclusion that the Surcharge Act not being retrospective by express intendment, or necessary implication, it cannot be made applicable from April 1, 1957, as the Act came into force from September 1, of that year.14. The High Court has, however, relied upon a decision of this Court in I.-T. Commr. v. I. S. Lines, AIR 1953 SC 439 , where it was held as follows :"It will be observed that we are here concerned with two datum lines : (1) the 1st of April, 1940, when the Act came into force, and (2) the 1st of April 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line, therefore, affected only the assessment year of 1940-41, because the amendment did not come into force till the 1st of April 1940. That means that the old law applied to every assessment year up to and including the assessment year 1939-40."This decision is authority for the proposition that though the subject of the charge is the income of the previous year, the law to be applied is that in force in the assessment year, unless otherwise stated or implied. The facts of the said decision are different and distinguishable and the High Court was clearly in error in applying that decision to the facts of the present case.15. The Surcharge Act having come into force on September 1, 1957, and the said Act not being retrospective in operation, it could not be regarded as law in force at the commencement of the year of assessment 1957-58. Since the Surcharge Act was not the law in force on April 1, 1957, no surcharge could be levied under the said Act against the appellant in the assessment year 1957-58.16. | 1[ds]8.Now, it is well-settled that the Income-tax Act, as it stands amended on the first day of April of any financial year must apply to the assessments of that year. Any amendments in the Act which come into force after the first day of April of a financial year, would not apply to the assessment for that year, even if the assessment is actually made after the amendments come into force.In the instant case, there is no escape from the conclusion that the Surcharge Act not being retrospective by express intendment, or necessary implication, it cannot be made applicable from April 1, 1957, as the Act came into force from September 1, of that year.14. TheSurcharge Act having come into force on September 1, 1957, and the said Act not being retrospective in operation, it could not be regarded as law in force at the commencement of the year of assessment 1957-58. Since the Surcharge Act was not the law in force on April 1, 1957, no surcharge could be levied under the said Act against the appellant in the assessment year 1957-58. | 1 | 1,922 | 207 | ### Instruction:
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year, even if the assessment is actually made after the amendments come into force.9. In Scindia Steam Navigation Co. Ltd. v. Commr. of Income-tax, (1954) 26 ITR 686 : (AIR 1955 Bom 230 ), a Division Bench of the Bombay High Court, consisting of Chagla, C. J., and Tendolkar, J., considered the question as to the effect of an amendment which came into force after the commencement of financial year. The facts in that case were these. The assessees ship was lost as a result of enemy action. The Government paid the assessee in 1944 a certain amount as compensation which exceeded the original cost of the ship. The Income-tax Officer included the difference between the original cost and the written down value of the ship in the total income of the assessee for the assessment year 1946-47. The Tribunal upheld that decision and referred the question, whether the sum representing the difference between the original cost and the written down value was properly included in the assessees total income computed for the assessment year 1946-47. It was argued that the fourth proviso to S. 10 (2) (vii) of the Income-tax act (inserted by the Amendment Act of 1946 with effect from May 4, 1946) under which the inclusion of the amount was justified by the department, had no application to the case.10. The learned Judges held that as it was the Finance Act of 1946 that imposed the tax for the assessment year 1946-47, the total income had to be computed in accordance with the provisions of the Income-tax Act as on April 1, 1946; that as the amendments made by the Amendment Act of 1946 with effect from May 4, 1946 were not retrospective, they could not be taken into consideration merely because the assessee was assessed after that date; and that the assessee was not liable to pay tax on the sum because the fourth proviso to S. 10 (2) (vii) of the Income-tax Act under which it was sought to be taxed was not in force in respect of the assessment year 1946-47.11. This Court affirmed this decision in Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., (1962) 1 SCR 788 : (1961) 42 ITR 589 : (AIR 1961 SC 1633 ), where it was stated at p. 816 (of SCR) : (at p. 1646 of AIR), as follows :"On the merits, the appellant had very little to say. He sought to contend that the proviso though it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect."12. In Commr. of Sales Tax, Uttar Pradesh v. Modi Sugar Mills Ltd., (1961) 2 SCR 189 : (AIR 1961 SC 1047 ), this Court held by a Majority at p. 199 (of SCR) : (at p. 1051 of AIR), As follows :"A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field. The turnover of the previous year is fictionally made the turnover of the year of assessment : it is not the actual or the real turnover of the year of assessment. By the imposition of a different tariff in the course of the year, the incidence of tax liability may competently be altered by the Legislature, but for effectuating that alteration, the Legislature must devise machinery for enforcing it against the tax payer and if the Legislature has failed to do so, the Court cannot resort to a fiction which is not prescribed by the Legislature and seek to effectuate that alteration by devising machinery not found in the statute."13. In the instant case, there is no escape from the conclusion that the Surcharge Act not being retrospective by express intendment, or necessary implication, it cannot be made applicable from April 1, 1957, as the Act came into force from September 1, of that year.14. The High Court has, however, relied upon a decision of this Court in I.-T. Commr. v. I. S. Lines, AIR 1953 SC 439 , where it was held as follows :"It will be observed that we are here concerned with two datum lines : (1) the 1st of April, 1940, when the Act came into force, and (2) the 1st of April 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line, therefore, affected only the assessment year of 1940-41, because the amendment did not come into force till the 1st of April 1940. That means that the old law applied to every assessment year up to and including the assessment year 1939-40."This decision is authority for the proposition that though the subject of the charge is the income of the previous year, the law to be applied is that in force in the assessment year, unless otherwise stated or implied. The facts of the said decision are different and distinguishable and the High Court was clearly in error in applying that decision to the facts of the present case.15. The Surcharge Act having come into force on September 1, 1957, and the said Act not being retrospective in operation, it could not be regarded as law in force at the commencement of the year of assessment 1957-58. Since the Surcharge Act was not the law in force on April 1, 1957, no surcharge could be levied under the said Act against the appellant in the assessment year 1957-58.16.
### Response:
1
### Explanation:
8.Now, it is well-settled that the Income-tax Act, as it stands amended on the first day of April of any financial year must apply to the assessments of that year. Any amendments in the Act which come into force after the first day of April of a financial year, would not apply to the assessment for that year, even if the assessment is actually made after the amendments come into force.In the instant case, there is no escape from the conclusion that the Surcharge Act not being retrospective by express intendment, or necessary implication, it cannot be made applicable from April 1, 1957, as the Act came into force from September 1, of that year.14. TheSurcharge Act having come into force on September 1, 1957, and the said Act not being retrospective in operation, it could not be regarded as law in force at the commencement of the year of assessment 1957-58. Since the Surcharge Act was not the law in force on April 1, 1957, no surcharge could be levied under the said Act against the appellant in the assessment year 1957-58.
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Commnr. Of Central Excise, Raipur Vs. M/S. Hira Cement | had been using the premises belonging to the Respondent as also the telephones which are installed therein or had been selling cement from it, the same by itself cannot be a ground for holding that the Respondent had been using the brand name of the said Hira Industries Limited. It was submitted that in fact the said Hira Industries Limited had been purchasing cement from the Respondent. 19. The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly. [See Tata Iron and Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 and Government of India & Ors. v. Indian Tobacco Association, 2005 (6) SCALE 683 ]. 20. In Commissioner of C. Ex., Trichy v. Rukmani Pakkwell Traders [2004 (165) ELT 481 : (2004) 11 SCC 801 ], the expression "such brand name" was considered holding: "7. The Tribunal had also held that under the Notification the use must be of "such brand name". The Tribunal has held that the words "such brand name" shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not) that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words "ARR" with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." 21. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies [2004 (166) ELT 23 ], the same view was reiterated. The views expressed therein have also been reiterated in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Another (supra). 22. The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another. The learned Commissioner or the learned Tribunal, as noticed supra, did not have the occasion to consider the question in the light of the aforementioned decisions of this Court. 23. Emkay Investment (supra) which was the basis for the decision of the Commissioner has expressly been overruled by this Court. The cross- objections filed by the Respondent, herein before the Tribunal also had not specifically been adverted to as the matter relating to maintainability of the appeal preferred by the Appellant, herein before the Tribunal does not appear to have been discussed nor any reference thereto has been made in the concluding paragraph of the judgment. 24. Before us, the parties have placed the entire facts. We may also place on record that it has been conceded before us by the learned counsel appearing on behalf of the Respondent that the earlier order dated 26.9.2001 shall not operate as a res-judicata but, as noticed hereinbefore, the only contention raised was that once the Revenue accepts a judgment, it cannot raise the said question once again. 25. Although some decisions to this effect have been cited by Mr. Santhanan, we are of the opinion that the matter should be considered afresh by the Tribunal upon considering all aspects of the matter. We refrain ourselves from going into the said question. We may, however, notice that a Bench of this Court in Government of W.B. v. Tarun K. Roy and Others, [(2004) 1 SCC 347] stated: "Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar1 by holding: "4. Shri B.B. Singh, the learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question."" 26. As we intend to remit the matter back to the Tribunal, we should not make any observation at this juncture which would affect the merit of the matter one way or the other. We may also be misunderstood. Suffice it to say that having regard to the definition of the brand name as contained in Explanation IX to the notification dated 28.2.1993, the matter requires fresh consideration by the Tribunal upon taking into consideration the fact of the matter. If, however, the Tribunal comes to the conclusion or is of the opinion that further investigation in facts may be necessary, it may pass such order or orders as it may think fit and proper. 27. | 1[ds]The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly.The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another. | 1 | 3,710 | 113 | ### 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:
had been using the premises belonging to the Respondent as also the telephones which are installed therein or had been selling cement from it, the same by itself cannot be a ground for holding that the Respondent had been using the brand name of the said Hira Industries Limited. It was submitted that in fact the said Hira Industries Limited had been purchasing cement from the Respondent. 19. The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly. [See Tata Iron and Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 and Government of India & Ors. v. Indian Tobacco Association, 2005 (6) SCALE 683 ]. 20. In Commissioner of C. Ex., Trichy v. Rukmani Pakkwell Traders [2004 (165) ELT 481 : (2004) 11 SCC 801 ], the expression "such brand name" was considered holding: "7. The Tribunal had also held that under the Notification the use must be of "such brand name". The Tribunal has held that the words "such brand name" shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would not be lost. We are afraid that in coming to this conclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name (whether registered or not) that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a connection in the course of trade would be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words "ARR" with the photograph of the founder of the group. Merely because the registered trade mark is not entirely reproduced does not take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification." 21. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies [2004 (166) ELT 23 ], the same view was reiterated. The views expressed therein have also been reiterated in Commissioner of Central Excise, Calcutta v. Emkay Investments (P) Ltd. and Another (supra). 22. The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another. The learned Commissioner or the learned Tribunal, as noticed supra, did not have the occasion to consider the question in the light of the aforementioned decisions of this Court. 23. Emkay Investment (supra) which was the basis for the decision of the Commissioner has expressly been overruled by this Court. The cross- objections filed by the Respondent, herein before the Tribunal also had not specifically been adverted to as the matter relating to maintainability of the appeal preferred by the Appellant, herein before the Tribunal does not appear to have been discussed nor any reference thereto has been made in the concluding paragraph of the judgment. 24. Before us, the parties have placed the entire facts. We may also place on record that it has been conceded before us by the learned counsel appearing on behalf of the Respondent that the earlier order dated 26.9.2001 shall not operate as a res-judicata but, as noticed hereinbefore, the only contention raised was that once the Revenue accepts a judgment, it cannot raise the said question once again. 25. Although some decisions to this effect have been cited by Mr. Santhanan, we are of the opinion that the matter should be considered afresh by the Tribunal upon considering all aspects of the matter. We refrain ourselves from going into the said question. We may, however, notice that a Bench of this Court in Government of W.B. v. Tarun K. Roy and Others, [(2004) 1 SCC 347] stated: "Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar1 by holding: "4. Shri B.B. Singh, the learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question."" 26. As we intend to remit the matter back to the Tribunal, we should not make any observation at this juncture which would affect the merit of the matter one way or the other. We may also be misunderstood. Suffice it to say that having regard to the definition of the brand name as contained in Explanation IX to the notification dated 28.2.1993, the matter requires fresh consideration by the Tribunal upon taking into consideration the fact of the matter. If, however, the Tribunal comes to the conclusion or is of the opinion that further investigation in facts may be necessary, it may pass such order or orders as it may think fit and proper. 27.
### Response:
1
### Explanation:
The purport and object of grant of exemption to a SSI unit is clear and unambiguous. It can be availed of, provided that they satisfy the conditions precedent therefor. The criteria for determining the eligibility of an entrepreneur for becoming entitled to have the benefit of exemption notification, it is well-settled, must be construed strictly.The ratio of the decisions referred to hereinbefore shortly stated is that if the manufacturer uses some brand of its own, it would be entitled to, but it would not be, for one reason or the other, it had been using the brand of another.
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The Brihan Maharashtra Sugarsyndicate Ltd Vs. Janardan Ramchandra Kulkarniand Others | had not been passed, but S 555(7) of the Act of 1956 will apply in respect of moneys paid into the Companies Liquidation Account. All that this section does is to make the provisions of the repealed Act applicable to the winding up notwithstanding the repeal. The provisions of S. 555(7) need not be referred to as they do not affect the question. Section 647 of the Act of 1956 therefore indicates no intention that the rights created by S. 153-C of the Act of 1913 shall be destroyed. Nor is an argument tenable that since by S. 647 the act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it, it impliedly indicates that in other matters the repealed Act cannot be resorted to, for, in view of S. 658 of the Act of 1956, the mention of a particular matter in S. 647 would not prejudice the application of S. 6 of the General Clauses Act;in other words, nothing in S. 647 is to be understood as indicating an intention that S. 6 of the General Clauses Act is not to apply. On the other hand, the parties are agreed that the provisions of S. 153-C of the Act of 1913 have been substantially re-enacted by the Act of 1956 and this would indicate an intention not to destroy the rights created by S. 153-C.7. Mr. Banaji then drew our attention to S. 10 of the Act of 1956 and S. 24 of the General Clauses Act. Section 10 of the Act of 1956 corresponds to S. 3 of the Act of 1913 and deals with the jurisdiction of Courts. Under S. 10 Central Government may empower a District Court to exercise jurisdiction under the Act, not being the jurisdiction conferred among others by Ss. 397 to 407 nor in respect of the winding up of companies with a paid up share capital of not less than Rs. 1,00,000 Section 397 to 407 of the Act of 1956, it is agreed, contain substantially the provisions of S. 153-C of the Act of 1913. It has also to be stated that the paid up capital of the appellant is more than Rs. 1,00,000 and the application under S. 153-C of the Act of 1913 contained a prayer in the alternative for the winding up of the appellant. Section 24 of the General Clauses Act provides that where any Act is repealed and re-enacted with or without modifications, then, unless it is otherwise expressly provided,. any notification issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been issued under the provisions so re-enacted unless and until it is superseded by a notification issued under those provisions.8. Mr. Banaji points out that in view of S. 10 of the Act of 1956 a District Court can no longer be empowered to deal with an application of the kind made to the District Judge of Poona, as that application asks for reliefs similar to those contemplated by Ss. 397 to 407 of the Act of 1956 and also asks for the winding up of a company whose paid up capital exceeds Rs. 1,00,000 and power to deal with such an application cannot now be given to a District Court. He, therefore, says that the notification issued under the Act of 1913 empowering the District Judge of Poona to deal with the application would be inconsistent in this respect with the provisions of the Act of 1956 and could not in view of S. 24 of the General Clauses Act be deemed to continue in force after the repeal of the Act of 1913. Hence it is contended that the notification has ceased to have any force and the District Judge of Poona has no longer any jurisdiction to hear the application. It is also said that this shows that the Act of 1956 indicates that the rights acquired under the Act of 1913 would come to an end on its repeal.9. We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by S. 153-C of the Act of 1913. This does not indicate that the rights created by S. 153-C of the act of 1913 were intended to be destroyed. As we have earlier pointed out from 1955-1 SCR 893 : ( (S) AIR 1955 SC 84 ) the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of S. 6 of the General Clauses Act. But it is said that S. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under S. 153-C of the Act of 1913 as that notification is inconsistent with S. 10 of the Act of 1956 and the District Judge cannot, therefore, continue to deal with the application.Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is to continue a notification in force in the state circumstances after the Act under which it was issued, is repealed. Section 24 therefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under S. 6 of the General Clauses Act the proceeding in respect of the application under S. 153-C of the Act of 1913 may be continued after the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then S. 6 would become infructuous. | 0[ds]We do not consider it necessary to pronounce on this question for it seems to us clear that that proceeding can be continued in spite of the repeal of the Act of 1913 in view of S. 6 of the General Clausesit so Section 6 of the General Clauses Act none the less remains applicable with respect to the effect of the repeal of the Act ofis no dispute that S. 153-C of the Act of 1913 gave certain rights to the share-holders of a company and put the company as also its directors and managing agents under certain liabilities. The application under that section was for enforcement of these rights and liabilities. Section 6 of the General Clauses Act would therefore preserve the rights and liabilities created by S. 153-C of the Act of 1913 and a continuance of the proceeding in respect thereof would be competent in spite of the repeal of the Act of 1913, unless of course a different intention could befind nothing there to support this view. That section only says that where the winding up of a company commences before the commencement of the act Of 1956, the company shall be wound up as if that Act had not been passed, but S 555(7) of the Act of 1956 will apply in respect of moneys paid into the Companies Liquidation Account. All that this section does is to make the provisions of the repealed Act applicable to the winding up notwithstanding the repeal. The provisions of S. 555(7) need not be referred to as they do not affect the question. Section 647 of the Act of 1956 therefore indicates no intention that the rights created by S. 153-C of the Act of 1913 shall be destroyed. Nor is an argument tenable that since by S. 647 the act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it, it impliedly indicates that in other matters the repealed Act cannot be resorted to, for, in view of S. 658 of the Act of 1956, the mention of a particular matter in S. 647 would not prejudice the application of S. 6 of the General Clauses Act;in other words, nothing in S. 647 is to be understood as indicating an intention that S. 6 of the General Clauses Act is not to apply. On the other hand, the parties are agreed that the provisions of S. 153-C of the Act of 1913 have been substantially re-enacted by the Act of 1956 and this would indicate an intention not to destroy the rights created by S. 153-C.We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by S. 153-C of the Act of 1913. This does not indicate that the rights created by S. 153-C of the act of 1913 were intended to be destroyed. As we have earlier pointed out from 1955-1 SCR 893 : ( (S) AIR 1955 SC 84 ) the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of S. 6 of the General Clauses Act. But it is said that S. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under S. 153-C of the Act of 1913 as that notification is inconsistent with S. 10 of the Act of 1956 and the District Judge cannot, therefore, continue to deal with the application.Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is to continue a notification in force in the state circumstances after the Act under which it was issued, is repealed. Section 24 therefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under S. 6 of the General Clauses Act the proceeding in respect of the application under S. 153-C of the Act of 1913 may be continued after the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then S. 6 would become infructuous. | 0 | 1,976 | 804 | ### 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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had not been passed, but S 555(7) of the Act of 1956 will apply in respect of moneys paid into the Companies Liquidation Account. All that this section does is to make the provisions of the repealed Act applicable to the winding up notwithstanding the repeal. The provisions of S. 555(7) need not be referred to as they do not affect the question. Section 647 of the Act of 1956 therefore indicates no intention that the rights created by S. 153-C of the Act of 1913 shall be destroyed. Nor is an argument tenable that since by S. 647 the act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it, it impliedly indicates that in other matters the repealed Act cannot be resorted to, for, in view of S. 658 of the Act of 1956, the mention of a particular matter in S. 647 would not prejudice the application of S. 6 of the General Clauses Act;in other words, nothing in S. 647 is to be understood as indicating an intention that S. 6 of the General Clauses Act is not to apply. On the other hand, the parties are agreed that the provisions of S. 153-C of the Act of 1913 have been substantially re-enacted by the Act of 1956 and this would indicate an intention not to destroy the rights created by S. 153-C.7. Mr. Banaji then drew our attention to S. 10 of the Act of 1956 and S. 24 of the General Clauses Act. Section 10 of the Act of 1956 corresponds to S. 3 of the Act of 1913 and deals with the jurisdiction of Courts. Under S. 10 Central Government may empower a District Court to exercise jurisdiction under the Act, not being the jurisdiction conferred among others by Ss. 397 to 407 nor in respect of the winding up of companies with a paid up share capital of not less than Rs. 1,00,000 Section 397 to 407 of the Act of 1956, it is agreed, contain substantially the provisions of S. 153-C of the Act of 1913. It has also to be stated that the paid up capital of the appellant is more than Rs. 1,00,000 and the application under S. 153-C of the Act of 1913 contained a prayer in the alternative for the winding up of the appellant. Section 24 of the General Clauses Act provides that where any Act is repealed and re-enacted with or without modifications, then, unless it is otherwise expressly provided,. any notification issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been issued under the provisions so re-enacted unless and until it is superseded by a notification issued under those provisions.8. Mr. Banaji points out that in view of S. 10 of the Act of 1956 a District Court can no longer be empowered to deal with an application of the kind made to the District Judge of Poona, as that application asks for reliefs similar to those contemplated by Ss. 397 to 407 of the Act of 1956 and also asks for the winding up of a company whose paid up capital exceeds Rs. 1,00,000 and power to deal with such an application cannot now be given to a District Court. He, therefore, says that the notification issued under the Act of 1913 empowering the District Judge of Poona to deal with the application would be inconsistent in this respect with the provisions of the Act of 1956 and could not in view of S. 24 of the General Clauses Act be deemed to continue in force after the repeal of the Act of 1913. Hence it is contended that the notification has ceased to have any force and the District Judge of Poona has no longer any jurisdiction to hear the application. It is also said that this shows that the Act of 1956 indicates that the rights acquired under the Act of 1913 would come to an end on its repeal.9. We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by S. 153-C of the Act of 1913. This does not indicate that the rights created by S. 153-C of the act of 1913 were intended to be destroyed. As we have earlier pointed out from 1955-1 SCR 893 : ( (S) AIR 1955 SC 84 ) the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of S. 6 of the General Clauses Act. But it is said that S. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under S. 153-C of the Act of 1913 as that notification is inconsistent with S. 10 of the Act of 1956 and the District Judge cannot, therefore, continue to deal with the application.Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is to continue a notification in force in the state circumstances after the Act under which it was issued, is repealed. Section 24 therefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under S. 6 of the General Clauses Act the proceeding in respect of the application under S. 153-C of the Act of 1913 may be continued after the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then S. 6 would become infructuous.
### Response:
0
### Explanation:
We do not consider it necessary to pronounce on this question for it seems to us clear that that proceeding can be continued in spite of the repeal of the Act of 1913 in view of S. 6 of the General Clausesit so Section 6 of the General Clauses Act none the less remains applicable with respect to the effect of the repeal of the Act ofis no dispute that S. 153-C of the Act of 1913 gave certain rights to the share-holders of a company and put the company as also its directors and managing agents under certain liabilities. The application under that section was for enforcement of these rights and liabilities. Section 6 of the General Clauses Act would therefore preserve the rights and liabilities created by S. 153-C of the Act of 1913 and a continuance of the proceeding in respect thereof would be competent in spite of the repeal of the Act of 1913, unless of course a different intention could befind nothing there to support this view. That section only says that where the winding up of a company commences before the commencement of the act Of 1956, the company shall be wound up as if that Act had not been passed, but S 555(7) of the Act of 1956 will apply in respect of moneys paid into the Companies Liquidation Account. All that this section does is to make the provisions of the repealed Act applicable to the winding up notwithstanding the repeal. The provisions of S. 555(7) need not be referred to as they do not affect the question. Section 647 of the Act of 1956 therefore indicates no intention that the rights created by S. 153-C of the Act of 1913 shall be destroyed. Nor is an argument tenable that since by S. 647 the act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it, it impliedly indicates that in other matters the repealed Act cannot be resorted to, for, in view of S. 658 of the Act of 1956, the mention of a particular matter in S. 647 would not prejudice the application of S. 6 of the General Clauses Act;in other words, nothing in S. 647 is to be understood as indicating an intention that S. 6 of the General Clauses Act is not to apply. On the other hand, the parties are agreed that the provisions of S. 153-C of the Act of 1913 have been substantially re-enacted by the Act of 1956 and this would indicate an intention not to destroy the rights created by S. 153-C.We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by S. 153-C of the Act of 1913. This does not indicate that the rights created by S. 153-C of the act of 1913 were intended to be destroyed. As we have earlier pointed out from 1955-1 SCR 893 : ( (S) AIR 1955 SC 84 ) the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of S. 6 of the General Clauses Act. But it is said that S. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under S. 153-C of the Act of 1913 as that notification is inconsistent with S. 10 of the Act of 1956 and the District Judge cannot, therefore, continue to deal with the application.Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is to continue a notification in force in the state circumstances after the Act under which it was issued, is repealed. Section 24 therefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under S. 6 of the General Clauses Act the proceeding in respect of the application under S. 153-C of the Act of 1913 may be continued after the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then S. 6 would become infructuous.
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Keshav Nilkanth Joglekar Vs. The Commissioner Of Police, Greaterbombay(And Connected Pe | the communication should be made not later than 5 days from the date of the order, and as S.3 (3) was more peremptory than S.7 in that it required that the report should be made forthwith, the period allowable under S.3 (3) could not exceed 5 days, and that as in these cases the reports were sent 8 days later, they could not be held to have been sent forthwith. This argument mixes up two different matters contained in S.7.The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, its very nature, be indefinite depending on the facts and circumstances of the case. It will be as erroneous to read 5 days into the period of allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S.3 (3) into the period which is allowable under the expression "forthwith".The result then is that the report sent by the Commissioner to the state on 21-1-1956 could be held to have been sent "forthwith" as required by S.3 (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.12. We must now examine the facts from the above standpoint. The commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956, though the orders themselves had been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establishment of a Sanyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15-11-1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki. The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly surcharged. It was under this situation that the Commissioner decided to take action under S.3 (2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13-1-1956. In his affidavit, the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on 13-1-1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders". Then the affidavit goes onto state:"It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on 13-1-1956, and continued to be so till 16-1-1955 and actual rioting occurred during that night and those riots continued till 22-1-1950. I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants. In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made."13. We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders, which he had passed or lounging supinely over them. The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of S.3 (3) of the Act.14. Mr. S. C. Gupta put forward some special contentions on behalf of the petitioners in C. M. Ps. Nos. 109 and 110 of 1956. He contended that as the order originally made against the petitioner in C. M. P. No. 109 of 1956 was that he should be detained in Arthur Road Prison, Bombay, the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction. It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road prison pending arrangements to transport him to Nasik.It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in, future. This contention is clearly unfounded. What a person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could be made. It was finally contended that what was alleged against the petitioners was only that they advocated hartal, and that was not a ground for making an order of detention. But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under S.3 (2). | 0[ds]10. We agree that forthwith in S.3(3) cannot mean the same thing as as soon as may be in S.7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, is this that while under S.7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under S. 3 (3) what is allowed is only the period during which he could not, without any fault of his own, send theargument mixes up two different matters contained inperiod of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, its very nature, be indefinite depending on the facts and circumstances of thewill be as erroneous to read 5 days into the period of allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S.3 (3) into the period which is allowable under the expression "forthwith".The result then is that the report sent by the Commissioner to the state on 21-1-1956 could be held to have been sent "forthwith" as required by S.3 (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders, which he had passed or lounging supinely overdelay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of S.3 (3) of theis clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road prison pending arrangements to transport him tocontention is clearlya person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could bethe charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under S.3 (2). | 0 | 3,789 | 590 | ### 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:
the communication should be made not later than 5 days from the date of the order, and as S.3 (3) was more peremptory than S.7 in that it required that the report should be made forthwith, the period allowable under S.3 (3) could not exceed 5 days, and that as in these cases the reports were sent 8 days later, they could not be held to have been sent forthwith. This argument mixes up two different matters contained in S.7.The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, its very nature, be indefinite depending on the facts and circumstances of the case. It will be as erroneous to read 5 days into the period of allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S.3 (3) into the period which is allowable under the expression "forthwith".The result then is that the report sent by the Commissioner to the state on 21-1-1956 could be held to have been sent "forthwith" as required by S.3 (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.12. We must now examine the facts from the above standpoint. The commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956, though the orders themselves had been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establishment of a Sanyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15-11-1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki. The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly surcharged. It was under this situation that the Commissioner decided to take action under S.3 (2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13-1-1956. In his affidavit, the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on 13-1-1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders". Then the affidavit goes onto state:"It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on 13-1-1956, and continued to be so till 16-1-1955 and actual rioting occurred during that night and those riots continued till 22-1-1950. I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants. In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made."13. We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders, which he had passed or lounging supinely over them. The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of S.3 (3) of the Act.14. Mr. S. C. Gupta put forward some special contentions on behalf of the petitioners in C. M. Ps. Nos. 109 and 110 of 1956. He contended that as the order originally made against the petitioner in C. M. P. No. 109 of 1956 was that he should be detained in Arthur Road Prison, Bombay, the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction. It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road prison pending arrangements to transport him to Nasik.It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in, future. This contention is clearly unfounded. What a person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could be made. It was finally contended that what was alleged against the petitioners was only that they advocated hartal, and that was not a ground for making an order of detention. But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under S.3 (2).
### Response:
0
### Explanation:
10. We agree that forthwith in S.3(3) cannot mean the same thing as as soon as may be in S.7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, is this that while under S.7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under S. 3 (3) what is allowed is only the period during which he could not, without any fault of his own, send theargument mixes up two different matters contained inperiod of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, its very nature, be indefinite depending on the facts and circumstances of thewill be as erroneous to read 5 days into the period of allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S.3 (3) into the period which is allowable under the expression "forthwith".The result then is that the report sent by the Commissioner to the state on 21-1-1956 could be held to have been sent "forthwith" as required by S.3 (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders, which he had passed or lounging supinely overdelay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of S.3 (3) of theis clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road prison pending arrangements to transport him tocontention is clearlya person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could bethe charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under S.3 (2).
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Nathmal Tolaram Vs. Superintendent Of Taxes, Dhubri And Another | of any goods chargeable to tax has escaped assessment during the return period, to serve at any time within three years of the aforesaid period, on the dealer liable to pay the tax in respect of such turnover a notice containing all or any of the requirements which may be included in a notice under sub-sec. 2 of S. 16 and may proceed to assess or reassess the dealer in respect of such period. But the Commissioner had not issued any such notice under S. 19A. Nor had the Commissioner in exercise of his revisional authority under S. 31 of the Act set aside the original order of assessment. The Commissioner merely directed under S. 32 sub-sec. 8 that the case be disposed of in accordance with the judgment of the High Court, and acting under that direction, the Superintendent of Taxes had no power to reopen the assessment and to call upon the appellants to produce documentary evidence with a view to commence an enquiry whether the sales involved in the case fell "within the purview of the Explanation to S. 2 sub-sec. 12". In any event, the account period as has already been observed was April 1, 1948 to September 30, 1948 and three years from the end of that period, expired before the date on which the notice was issued. Fresh proceedings for reassessment could not be initiated by the Superintendent of Taxes under S. 19 after the expiry of three years from the assessment period assuming that this could be regarded as a case of failure to apply for registration and to make a return required of the appellants. 7. In support of his contention that the Superintendent of Taxes had authority to proceed to reassess the appellants in the light of the observations made in the judgment of the High Court, counsel for the appellants invited our attention to the judgment of the Privy Council in Commr. of Income Tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408 : (AIR 1936 PC 269 ). In that case, a foreign company was assessed by the Income Tax authorities in the name of a resident company for profits and gains received by the latter as its agent under Ss. 42(1) and 43 of the Indian Income Tax Act, 1922. In a reference under S. 66 of the Income Tax Act, the High Court at Bombay opined that the assessment was illegal. The Commissioner of Income Tax thereafter sent back the case with a direction to set aside the assessment and to make a fresh assessment after making such further enquiry as the Income Tax Officer might think fit. Acting upon that order, the Income Tax Officer required the resident company as agent of the foreign company to produce or cause to be produced books of account for the year of assessment and also to produce such other evidence on which it might seek to rely in respect of its return, and the resident company having failed to produce the books of the foreign company, he proceeded to make an assessment under S. 23(4) of the Income Tax Act, 1922. By its petition under S. 45 of the Specific Relief Act filed in the High Court at Bombay, the resident company prayed for an order for refund of the taxes already paid under the original assessment, and for an order for disposal of certain proceedings initiated by it before the Assistant Commissioner and the Income Tax Officer. The High Court made an order directing refund of tax paid, and further directing cancellation of assessment. In an appeal preferred by the Commissioner of Income tax against the order of the High Court, it was observed by the Privy Council that the Commissioner was not obliged to discontinue proceedings against the resident company as agent of the foreign company in respect of the year of assessment, and it was within the jurisdiction of the Commissioner under S. 33(2) of the Income Tax Act to direct further enquiry if he thought such an enquiry to be reasoanble and to be profitable in the public interest. 8. The principle of this case has in our judgment no application to the present case. The High Court at Bombay in its advisory jurisdiction had declared the assessment already made to be illegal. But the Commissioner was under S. 33 of the Indian Income Tax Act invested with jurisdiction to direct further enquiry, and he purported to exercise that jurisdiction. The Privy Council rejected the challenge to the exercise of that jurisdiction. In the present case, no proceedings were started by the Commissioner of Taxes in exercise of his revisional authority. The Commissioner of Taxes had directed the Superintendent of Taxes merely to dispose of the case according to the judgment of the High Court, and the Superintendent had to carry out that order. If he was competent - and on that question, we express no opinion - he could if the conditions precedent to the exercise of his jurisdiction existed, proceed to reassess the appellants. But the proceedings for reassessment were clearly barred because the period prescribed for reassessment had expired. The Superintendent therefore had no power to issue a notice calling upon the appellants to produce evidence to enable him to start an enquiry which was barred by the expiry of the period of limitation prescribed by the Act. In the Bombay Trust Corporation case (supra), the Income Tax Officer acted in pursuance of the direction of the Commissioner lawfully given in exercise of revisional authority and reopened the assessment. In the present case, no such direction has been given by an authority competent in that behalf : and the Superintendent had no power to reassess the income under S. 19 assuming that the section applied to a case where the assesse though registered had failed to include his sales in a particular commodity in his turnover, because the period of limitation prescribed in that behalf had expired. | 1[ds]8. The principle of this case has in our judgment no application to the present case. The High Court at Bombay in its advisory jurisdiction had declared the assessment already made to be illegal. But the Commissioner was under S. 33 of the Indian Income Tax Act invested with jurisdiction to direct further enquiry, and he purported to exercise that jurisdiction. The Privy Council rejected the challenge to the exercise of that jurisdiction. In the present case, no proceedings were started by the Commissioner of Taxes in exercise of his revisional authority. The Commissioner of Taxes had directed the Superintendent of Taxes merely to dispose of the case according to the judgment of the High Court, and the Superintendent had to carry out that order. If he was competent - and on that question, we express no opinion - he could if the conditions precedent to the exercise of his jurisdiction existed, proceed to reassess the appellants. But the proceedings for reassessment were clearly barred because the period prescribed for reassessment had expired. The Superintendent therefore had no power to issue a notice calling upon the appellants to produce evidence to enable him to start an enquiry which was barred by the expiry of the period of limitation prescribed by the Act. In the Bombay Trust Corporation case (supra), the Income Tax Officer acted in pursuance of the direction of the Commissioner lawfully given in exercise of revisional authority and reopened the assessment. In the present case, no such direction has been given by an authority competent in that behalf : and the Superintendent had no power to reassess the income under S. 19 assuming that the section applied to a case where the assesse though registered had failed to include his sales in a particular commodity in his turnover, because the period of limitation prescribed in that behalf had expired. | 1 | 2,201 | 337 | ### 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:
of any goods chargeable to tax has escaped assessment during the return period, to serve at any time within three years of the aforesaid period, on the dealer liable to pay the tax in respect of such turnover a notice containing all or any of the requirements which may be included in a notice under sub-sec. 2 of S. 16 and may proceed to assess or reassess the dealer in respect of such period. But the Commissioner had not issued any such notice under S. 19A. Nor had the Commissioner in exercise of his revisional authority under S. 31 of the Act set aside the original order of assessment. The Commissioner merely directed under S. 32 sub-sec. 8 that the case be disposed of in accordance with the judgment of the High Court, and acting under that direction, the Superintendent of Taxes had no power to reopen the assessment and to call upon the appellants to produce documentary evidence with a view to commence an enquiry whether the sales involved in the case fell "within the purview of the Explanation to S. 2 sub-sec. 12". In any event, the account period as has already been observed was April 1, 1948 to September 30, 1948 and three years from the end of that period, expired before the date on which the notice was issued. Fresh proceedings for reassessment could not be initiated by the Superintendent of Taxes under S. 19 after the expiry of three years from the assessment period assuming that this could be regarded as a case of failure to apply for registration and to make a return required of the appellants. 7. In support of his contention that the Superintendent of Taxes had authority to proceed to reassess the appellants in the light of the observations made in the judgment of the High Court, counsel for the appellants invited our attention to the judgment of the Privy Council in Commr. of Income Tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408 : (AIR 1936 PC 269 ). In that case, a foreign company was assessed by the Income Tax authorities in the name of a resident company for profits and gains received by the latter as its agent under Ss. 42(1) and 43 of the Indian Income Tax Act, 1922. In a reference under S. 66 of the Income Tax Act, the High Court at Bombay opined that the assessment was illegal. The Commissioner of Income Tax thereafter sent back the case with a direction to set aside the assessment and to make a fresh assessment after making such further enquiry as the Income Tax Officer might think fit. Acting upon that order, the Income Tax Officer required the resident company as agent of the foreign company to produce or cause to be produced books of account for the year of assessment and also to produce such other evidence on which it might seek to rely in respect of its return, and the resident company having failed to produce the books of the foreign company, he proceeded to make an assessment under S. 23(4) of the Income Tax Act, 1922. By its petition under S. 45 of the Specific Relief Act filed in the High Court at Bombay, the resident company prayed for an order for refund of the taxes already paid under the original assessment, and for an order for disposal of certain proceedings initiated by it before the Assistant Commissioner and the Income Tax Officer. The High Court made an order directing refund of tax paid, and further directing cancellation of assessment. In an appeal preferred by the Commissioner of Income tax against the order of the High Court, it was observed by the Privy Council that the Commissioner was not obliged to discontinue proceedings against the resident company as agent of the foreign company in respect of the year of assessment, and it was within the jurisdiction of the Commissioner under S. 33(2) of the Income Tax Act to direct further enquiry if he thought such an enquiry to be reasoanble and to be profitable in the public interest. 8. The principle of this case has in our judgment no application to the present case. The High Court at Bombay in its advisory jurisdiction had declared the assessment already made to be illegal. But the Commissioner was under S. 33 of the Indian Income Tax Act invested with jurisdiction to direct further enquiry, and he purported to exercise that jurisdiction. The Privy Council rejected the challenge to the exercise of that jurisdiction. In the present case, no proceedings were started by the Commissioner of Taxes in exercise of his revisional authority. The Commissioner of Taxes had directed the Superintendent of Taxes merely to dispose of the case according to the judgment of the High Court, and the Superintendent had to carry out that order. If he was competent - and on that question, we express no opinion - he could if the conditions precedent to the exercise of his jurisdiction existed, proceed to reassess the appellants. But the proceedings for reassessment were clearly barred because the period prescribed for reassessment had expired. The Superintendent therefore had no power to issue a notice calling upon the appellants to produce evidence to enable him to start an enquiry which was barred by the expiry of the period of limitation prescribed by the Act. In the Bombay Trust Corporation case (supra), the Income Tax Officer acted in pursuance of the direction of the Commissioner lawfully given in exercise of revisional authority and reopened the assessment. In the present case, no such direction has been given by an authority competent in that behalf : and the Superintendent had no power to reassess the income under S. 19 assuming that the section applied to a case where the assesse though registered had failed to include his sales in a particular commodity in his turnover, because the period of limitation prescribed in that behalf had expired.
### Response:
1
### Explanation:
8. The principle of this case has in our judgment no application to the present case. The High Court at Bombay in its advisory jurisdiction had declared the assessment already made to be illegal. But the Commissioner was under S. 33 of the Indian Income Tax Act invested with jurisdiction to direct further enquiry, and he purported to exercise that jurisdiction. The Privy Council rejected the challenge to the exercise of that jurisdiction. In the present case, no proceedings were started by the Commissioner of Taxes in exercise of his revisional authority. The Commissioner of Taxes had directed the Superintendent of Taxes merely to dispose of the case according to the judgment of the High Court, and the Superintendent had to carry out that order. If he was competent - and on that question, we express no opinion - he could if the conditions precedent to the exercise of his jurisdiction existed, proceed to reassess the appellants. But the proceedings for reassessment were clearly barred because the period prescribed for reassessment had expired. The Superintendent therefore had no power to issue a notice calling upon the appellants to produce evidence to enable him to start an enquiry which was barred by the expiry of the period of limitation prescribed by the Act. In the Bombay Trust Corporation case (supra), the Income Tax Officer acted in pursuance of the direction of the Commissioner lawfully given in exercise of revisional authority and reopened the assessment. In the present case, no such direction has been given by an authority competent in that behalf : and the Superintendent had no power to reassess the income under S. 19 assuming that the section applied to a case where the assesse though registered had failed to include his sales in a particular commodity in his turnover, because the period of limitation prescribed in that behalf had expired.
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Deputy Commercial Tax Officer & Anr Vs. Sha Sukhraj Peerajee | Lords in Whitney v. Commissioners of Inland Revenue 1926 AC 37 that the liability to tax does not depend upon assessment. The liability is definitely created by Sections 3 and 4 of the Income-tax Act which are the charging Sections and the assessment order under Section 23 only quantifies the liability which has already been definitely and finally created by the charging Sections and the provision in regard to assessment relates only to the machinery of taxation. In our opinion, the principle of these decisions applies to the interpretation of the Act in the present caseWe consider that, in the context and background of other Sections of the Act, the word assessment used in Section. 19 (2) (c) does not include the power of recovering tax assessed from a person other than the assessee. It follows therefore that Rule 21-A is beyond the rule-making power of the State Government either under Section 19 (1) or Section 19 (2) (c) of the Act. It was then submitted by Mr. Rama Reddy that Rule 21-A may be supported by the language of Section 10 (1) of the Act which states :"10. Payment and recovery of tax.-(1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment not being less than fifteen days from the date of service of the notice. If default is made in paying according to the notice of assessment the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act"It was contended that under this Section the whole of the amount outstanding on the date of default is charged on the property of the person liable to pay the tax. In the present case, the business which was transferred to the respondent was hence charged with the payment of sales tax and it was open to sales tax authorities to proceed against the assets of the business for realising the amount of sales tax due. In our opinion there is no justification for this argument. Section 10 of the Act as it stood before the Madras General Sales-tax (3rd Amendment) Act, 1956 (Act No. XV of 1956) read as follows :"The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. In default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue."This Section was amended by Section 8 of the Madras General Sales Tax (3rd Amendment) Act, 1956 which reads as follows."Substitution of new Section for Section 10 in Madras Act IX of 1939.-For Section 10 of the principal Act, the following Section shall be substituted, namely :-10. Payment and recovery of tax.- (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act......................................"The 3rd Amendment Act, 1956 received the assent of the President on October 1, 1956 but it was published in the Madras Gazette on October 8, 1956. Section 5 of the Madras General Clauses Act (Madras Act No. 1 of 1891) provides as follows :"5. (1) Where any Act to which this Chapter applies is not expressed to come into operation, on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor, the Governor-General or the President, as the case may require, is first published in the Official Gazette."In the present case, the Act is not expressed to come into operation on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before. In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, l956 and the amending Act has therefore no application. We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21-A is ultra vires of the-rule-making power of the State Government under the Act.6. It was next argued on behalf of the appellants that upon a true construction of the registered instrument dated October 5, l956 the respondent undertook to pay not only Sch. I liabilities but also other liabilities like sales tax imposed in regard to the business. It was, however, disputed by Mr. Ganapathy Iyer on behalf of the respondent that there was any undertaking on the part of the respondent to discharge the liabilities in regard to arrears of sales-tax.But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party to the instrument. We accordingly reject the argument of the appellants on this aspect of the case also. | 1[ds]But there is no such provision in the Act for the period with which we are concerned in the presentare unable to accept this argument as correct. Section 19 (1) of the Act empowers the State Government to make rules to carry out the purposes of the Act,but the Section cannot be utilised to enlarge the scope of Section 10 regarding recovery and payment of tax from some other person other than a "dealer" under the Act.We also consider that the State Government has no authority under Section 19 (2) (c) of the Act to enact the rule. Section 19 (2) (c) deals with the assessment to tax of business which are discontinued or the ownership of which has changed. It is true that the word "assessment" in the scheme of sales-tax and income tax legislation is a term of varying import. The word is used sometimes to mean the computation of income, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Income-tax Act for imposing liability on theour opinion, the principle of these decisions applies to the interpretation of the Act in the presentconsider that, in the context and background of other Sections of the Act, the word assessment used in Section. 19 (2) (c) does not include the power of recovering tax assessed from a person other than the assessee. It follows therefore that Rule 21-A is beyond the rule-making power of the State Government either under Section 19 (1) or Section 19 (2) (c) of the Act.In our opinion there is no justification for thisthe present case, the Act is not expressed to come into operation on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before. In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, l956 and the amending Act has therefore no application. We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21-A is ultra vires of the-rule-making power of the State Government under theeven on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party to the instrument. We accordingly reject the argument of the appellants on this aspect of the case also. | 1 | 2,466 | 530 | ### 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:
Lords in Whitney v. Commissioners of Inland Revenue 1926 AC 37 that the liability to tax does not depend upon assessment. The liability is definitely created by Sections 3 and 4 of the Income-tax Act which are the charging Sections and the assessment order under Section 23 only quantifies the liability which has already been definitely and finally created by the charging Sections and the provision in regard to assessment relates only to the machinery of taxation. In our opinion, the principle of these decisions applies to the interpretation of the Act in the present caseWe consider that, in the context and background of other Sections of the Act, the word assessment used in Section. 19 (2) (c) does not include the power of recovering tax assessed from a person other than the assessee. It follows therefore that Rule 21-A is beyond the rule-making power of the State Government either under Section 19 (1) or Section 19 (2) (c) of the Act. It was then submitted by Mr. Rama Reddy that Rule 21-A may be supported by the language of Section 10 (1) of the Act which states :"10. Payment and recovery of tax.-(1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment not being less than fifteen days from the date of service of the notice. If default is made in paying according to the notice of assessment the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act"It was contended that under this Section the whole of the amount outstanding on the date of default is charged on the property of the person liable to pay the tax. In the present case, the business which was transferred to the respondent was hence charged with the payment of sales tax and it was open to sales tax authorities to proceed against the assets of the business for realising the amount of sales tax due. In our opinion there is no justification for this argument. Section 10 of the Act as it stood before the Madras General Sales-tax (3rd Amendment) Act, 1956 (Act No. XV of 1956) read as follows :"The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. In default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue."This Section was amended by Section 8 of the Madras General Sales Tax (3rd Amendment) Act, 1956 which reads as follows."Substitution of new Section for Section 10 in Madras Act IX of 1939.-For Section 10 of the principal Act, the following Section shall be substituted, namely :-10. Payment and recovery of tax.- (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act......................................"The 3rd Amendment Act, 1956 received the assent of the President on October 1, 1956 but it was published in the Madras Gazette on October 8, 1956. Section 5 of the Madras General Clauses Act (Madras Act No. 1 of 1891) provides as follows :"5. (1) Where any Act to which this Chapter applies is not expressed to come into operation, on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor, the Governor-General or the President, as the case may require, is first published in the Official Gazette."In the present case, the Act is not expressed to come into operation on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before. In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, l956 and the amending Act has therefore no application. We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21-A is ultra vires of the-rule-making power of the State Government under the Act.6. It was next argued on behalf of the appellants that upon a true construction of the registered instrument dated October 5, l956 the respondent undertook to pay not only Sch. I liabilities but also other liabilities like sales tax imposed in regard to the business. It was, however, disputed by Mr. Ganapathy Iyer on behalf of the respondent that there was any undertaking on the part of the respondent to discharge the liabilities in regard to arrears of sales-tax.But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party to the instrument. We accordingly reject the argument of the appellants on this aspect of the case also.
### Response:
1
### Explanation:
But there is no such provision in the Act for the period with which we are concerned in the presentare unable to accept this argument as correct. Section 19 (1) of the Act empowers the State Government to make rules to carry out the purposes of the Act,but the Section cannot be utilised to enlarge the scope of Section 10 regarding recovery and payment of tax from some other person other than a "dealer" under the Act.We also consider that the State Government has no authority under Section 19 (2) (c) of the Act to enact the rule. Section 19 (2) (c) deals with the assessment to tax of business which are discontinued or the ownership of which has changed. It is true that the word "assessment" in the scheme of sales-tax and income tax legislation is a term of varying import. The word is used sometimes to mean the computation of income, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Income-tax Act for imposing liability on theour opinion, the principle of these decisions applies to the interpretation of the Act in the presentconsider that, in the context and background of other Sections of the Act, the word assessment used in Section. 19 (2) (c) does not include the power of recovering tax assessed from a person other than the assessee. It follows therefore that Rule 21-A is beyond the rule-making power of the State Government either under Section 19 (1) or Section 19 (2) (c) of the Act.In our opinion there is no justification for thisthe present case, the Act is not expressed to come into operation on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before. In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, l956 and the amending Act has therefore no application. We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21-A is ultra vires of the-rule-making power of the State Government under theeven on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party to the instrument. We accordingly reject the argument of the appellants on this aspect of the case also.
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Sharad Kumar Sanghi Vs. Sangita Rane | no allegation against him. In the initial statement made under Section 200 of the Cr.P.C., the complainant after narrating the facts, has stated thus : "Sanghi Brothers Limited run by Mr. Sharad Sanghi committed cheating with the Applicant by delivering accidented vehicle in place of a new one and caused gross financial loss. Applicant is operating the vehicle after borrowing loan from Bank and the vehicle is not worth operating at present due to said defects. I have filed the Photostat copies of the concerning documents in the case." 9. The allegations which find place against the Managing Director in his personal capacity, as we notice, are absolutely vague. When a complainant intends to proceed against the Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. In Maksud Sajyad vs. State of Gujarat ((2008) 5 SCC 668 ), it has been held, thus: "Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligator on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."In this regard, reference to a three-Judge Bench decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another ((2005) 8 SCC 89 ) would be apposite. While dealing with an offence under Section 138 of the Negotiable Instruments Act, 1881, the Court explaining the duty of a Magistrate while issuing process and his power to dismiss a complaint under Section 203 without even issuing process observed thus:-".... a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding".The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed." After so stating, the Court analysed Section 141 of the Act and after referring to certain other authorities answered a referent and relevant part of the answer reads as follows:- "It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied." 10. The same principle has been reiterated in S.K. Alagh v. State of UP ((2008) 5 SCC 662 ); Maharashtra State Electricity Distribution Company Ltd. v. Datar Switchgear Ltd. ((2010) 10 SCC 479 ); and GHCL Employees Stock Option Trust v. India Infoline Ltd. ((2013) 4 SCC 505 ). 11. In the case at hand as the complainants initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours Private Limited ((2012) 5 SCC 661 ) in the context of Negotiable Instruments Act, 1881.12. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thus :- "It appears prima-facie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her at the cost of a new truck. Accordingly, prima-facie sufficient grounds exist for registration of a complaint against the accused U/s. 420 of I.P.C. and is accordingly registered." 13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of comp 4leteness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant. | 1[ds]11. In the case at hand as the complainants initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. It has been so held by aBench in Aneeta Hada v. Godfather Travels and Tours Private Limited ((2012) 5 SCC 661 ) in the context of Negotiable Instruments Act, 1881.12. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thusie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her at the cost of a new truck. Accordingly,sufficient grounds exist for registration of a complaint against the accused U/s. 420 of I.P.C. and is accordingly registered.When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of comp 4leteness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant. | 1 | 1,869 | 328 | ### 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:
no allegation against him. In the initial statement made under Section 200 of the Cr.P.C., the complainant after narrating the facts, has stated thus : "Sanghi Brothers Limited run by Mr. Sharad Sanghi committed cheating with the Applicant by delivering accidented vehicle in place of a new one and caused gross financial loss. Applicant is operating the vehicle after borrowing loan from Bank and the vehicle is not worth operating at present due to said defects. I have filed the Photostat copies of the concerning documents in the case." 9. The allegations which find place against the Managing Director in his personal capacity, as we notice, are absolutely vague. When a complainant intends to proceed against the Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. In Maksud Sajyad vs. State of Gujarat ((2008) 5 SCC 668 ), it has been held, thus: "Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligator on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."In this regard, reference to a three-Judge Bench decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another ((2005) 8 SCC 89 ) would be apposite. While dealing with an offence under Section 138 of the Negotiable Instruments Act, 1881, the Court explaining the duty of a Magistrate while issuing process and his power to dismiss a complaint under Section 203 without even issuing process observed thus:-".... a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding".The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed." After so stating, the Court analysed Section 141 of the Act and after referring to certain other authorities answered a referent and relevant part of the answer reads as follows:- "It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied." 10. The same principle has been reiterated in S.K. Alagh v. State of UP ((2008) 5 SCC 662 ); Maharashtra State Electricity Distribution Company Ltd. v. Datar Switchgear Ltd. ((2010) 10 SCC 479 ); and GHCL Employees Stock Option Trust v. India Infoline Ltd. ((2013) 4 SCC 505 ). 11. In the case at hand as the complainants initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours Private Limited ((2012) 5 SCC 661 ) in the context of Negotiable Instruments Act, 1881.12. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thus :- "It appears prima-facie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her at the cost of a new truck. Accordingly, prima-facie sufficient grounds exist for registration of a complaint against the accused U/s. 420 of I.P.C. and is accordingly registered." 13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of comp 4leteness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant.
### Response:
1
### Explanation:
11. In the case at hand as the complainants initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. It has been so held by aBench in Aneeta Hada v. Godfather Travels and Tours Private Limited ((2012) 5 SCC 661 ) in the context of Negotiable Instruments Act, 1881.12. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thusie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her at the cost of a new truck. Accordingly,sufficient grounds exist for registration of a complaint against the accused U/s. 420 of I.P.C. and is accordingly registered.When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of comp 4leteness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant.
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Purushottam Das Vs. Viii Additional Distt. and Sessions Judge, Allahabad and Others | explanation (iv) to Section 21 of the Act. The prescribed authority held that both the grounds were made out by respondent 3 and the case also fell within explanation (iv) and it accordingly passed an order of eviction against the appellant and respondents 4 to 10. The appeal preferred by the appellant against the order of eviction was dismissed by the learned District Judge. The appellant thereupon filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution of India. Two questions in the main were raised before the High Court; one was that the explanation (iv) was inapplicable since the terms of that explanation were not satisfied; and the other was that the comparative hardships of the landlord and the tenant was not taken into account by the learned District Judge as well as by the prescribed authority in passing the order of eviction, though they were required to do so by reason of Rule 16 of the Rules framed under the Act. The High Court held that explanation (iv) was attracted in the present case and the bona fide requirement of respondent 3 must accordingly be held to be established. The High Court also held in the alternative that in any event the bona fide requirement of respondent 3 was established on the evidence on record. So far as the question of comparative hardship of the landlord and the tenant was concerned, the High Court took the view, following its Full Bench decision in Chandra Kumar Shah v. District Judge [1976 Allahabad Weekly Cases 50 : AIR 1976 All 328 ], that Rule 16 clause (1) was ultra vires and it was not necessary to consider the comparative hardship of the landlord and the tenant. The High Court in this view rejected the writ petition. Hence the present appeal by special leave obtained from this Court. 2. The first question that was raised before us by the learned appearing for the appellant was that explanation (iv) was wrongly held to be applicable by the learned District Judge as well as by the prescribed authority. He submitted that this explanation was not attracted in the present case. He also contended that apart altogether from the question as to whether explanation (iv) was on its terms applicable, this explanation did not fall for consideration, since it was repealed by Section 14(i)(c)(2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. This contention would have required some consideration but it was conceded on behalf of respondent 3 that in view of its omission by the Amending Act, explanation (iv) was out of the way and it was not necessary to consider whether it had any application in the present case. But the question still remains whether the High Court was right in refusing to consider the comparative hardship of the landlord and the tenant under Rule 16(1). That would have raised a question as to the correctness of the Full Bench judgment in C. K. Shahs case but we find that by the Amending Act, Section 21 has been amended with retrospective effect by introduction of a proviso which is in the following terms : Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 3. In view of this proviso, it is now obligatory on the prescribed authority and the appellate authority to take into account the comparative hardship of the landlord and the tenant and for that purpose to have regard to such factors as may be prescribed by the Rules in deciding whether or not to pass an order of eviction. Section 26(5) of the Amending Act also declares that, notwithstanding any judgment, decree or order of any court or authority, the provisions of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 shall be deemed to have been made under the provisions of the principal Act as amended by this Act, as if this Act were in force at all material times. The learned District Judge as well as the prescribed authority were therefore bound to take into account the comparative hardship of the landlord and the tenant in the light of the various factors set out in Rule 16 while considering whether or not an order of eviction should be passed. The High Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in the light of the factors set out in Rule 16 was not taken into account by the prescribed authority and the learned District Judge. It was contended on behalf of respondent 3 that, in fact, the learned District Judge as well as the prescribed authority had considered the question of comparative hardship of the landlord and the tenant and given a finding adverse to the appellant and this finding being a finding of fact, the High Court had refused to interfere with it. But this contention does not appear to be correct if we look at the judgment of the High Court. It is clear that the High Court refused to disturb the finding the learned District Judge in regard to this question because it felt that in view of the Full Bench decision in C. K. Shahs case it was not necessary to consider the question of comparative hardship. The judgment of the High Court will, therefore, have to be set aside and the case will have to be remanded to the High Court for the purpose of considering the contention of the appellant in regard to comparative hardship in the light of the amended Section 21 read with Rule 16. 4. | 1[ds]The High Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in the light of the factors set out in Rule 16 was not taken into account by the prescribed authority and the learned District Judge. It was contended on behalf of respondent 3 that, in fact, the learned District Judge as well as the prescribed authority had considered the question of comparative hardship of the landlord and the tenant and given a finding adverse to the appellant and this finding being a finding of fact, the High Court had refused to interfere with it. But this contention does not appear to be correct if we look at the judgment of the High Court. It is clear that the High Court refused to disturb the finding the learned District Judge in regard to this question because it felt that in view of the Full Bench decision in C. K. Shahs case it was not necessary to consider the question of comparative hardship. The judgment of the High Court will, therefore, have to be set aside and the case will have to be remanded to the High Court for the purpose of considering the contention of the appellant in regard to comparative hardship in the light of the amended Section 21 read with Rule 16. | 1 | 1,202 | 243 | ### 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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explanation (iv) to Section 21 of the Act. The prescribed authority held that both the grounds were made out by respondent 3 and the case also fell within explanation (iv) and it accordingly passed an order of eviction against the appellant and respondents 4 to 10. The appeal preferred by the appellant against the order of eviction was dismissed by the learned District Judge. The appellant thereupon filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution of India. Two questions in the main were raised before the High Court; one was that the explanation (iv) was inapplicable since the terms of that explanation were not satisfied; and the other was that the comparative hardships of the landlord and the tenant was not taken into account by the learned District Judge as well as by the prescribed authority in passing the order of eviction, though they were required to do so by reason of Rule 16 of the Rules framed under the Act. The High Court held that explanation (iv) was attracted in the present case and the bona fide requirement of respondent 3 must accordingly be held to be established. The High Court also held in the alternative that in any event the bona fide requirement of respondent 3 was established on the evidence on record. So far as the question of comparative hardship of the landlord and the tenant was concerned, the High Court took the view, following its Full Bench decision in Chandra Kumar Shah v. District Judge [1976 Allahabad Weekly Cases 50 : AIR 1976 All 328 ], that Rule 16 clause (1) was ultra vires and it was not necessary to consider the comparative hardship of the landlord and the tenant. The High Court in this view rejected the writ petition. Hence the present appeal by special leave obtained from this Court. 2. The first question that was raised before us by the learned appearing for the appellant was that explanation (iv) was wrongly held to be applicable by the learned District Judge as well as by the prescribed authority. He submitted that this explanation was not attracted in the present case. He also contended that apart altogether from the question as to whether explanation (iv) was on its terms applicable, this explanation did not fall for consideration, since it was repealed by Section 14(i)(c)(2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. This contention would have required some consideration but it was conceded on behalf of respondent 3 that in view of its omission by the Amending Act, explanation (iv) was out of the way and it was not necessary to consider whether it had any application in the present case. But the question still remains whether the High Court was right in refusing to consider the comparative hardship of the landlord and the tenant under Rule 16(1). That would have raised a question as to the correctness of the Full Bench judgment in C. K. Shahs case but we find that by the Amending Act, Section 21 has been amended with retrospective effect by introduction of a proviso which is in the following terms : Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 3. In view of this proviso, it is now obligatory on the prescribed authority and the appellate authority to take into account the comparative hardship of the landlord and the tenant and for that purpose to have regard to such factors as may be prescribed by the Rules in deciding whether or not to pass an order of eviction. Section 26(5) of the Amending Act also declares that, notwithstanding any judgment, decree or order of any court or authority, the provisions of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 shall be deemed to have been made under the provisions of the principal Act as amended by this Act, as if this Act were in force at all material times. The learned District Judge as well as the prescribed authority were therefore bound to take into account the comparative hardship of the landlord and the tenant in the light of the various factors set out in Rule 16 while considering whether or not an order of eviction should be passed. The High Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in the light of the factors set out in Rule 16 was not taken into account by the prescribed authority and the learned District Judge. It was contended on behalf of respondent 3 that, in fact, the learned District Judge as well as the prescribed authority had considered the question of comparative hardship of the landlord and the tenant and given a finding adverse to the appellant and this finding being a finding of fact, the High Court had refused to interfere with it. But this contention does not appear to be correct if we look at the judgment of the High Court. It is clear that the High Court refused to disturb the finding the learned District Judge in regard to this question because it felt that in view of the Full Bench decision in C. K. Shahs case it was not necessary to consider the question of comparative hardship. The judgment of the High Court will, therefore, have to be set aside and the case will have to be remanded to the High Court for the purpose of considering the contention of the appellant in regard to comparative hardship in the light of the amended Section 21 read with Rule 16. 4.
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1
### Explanation:
The High Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in the light of the factors set out in Rule 16 was not taken into account by the prescribed authority and the learned District Judge. It was contended on behalf of respondent 3 that, in fact, the learned District Judge as well as the prescribed authority had considered the question of comparative hardship of the landlord and the tenant and given a finding adverse to the appellant and this finding being a finding of fact, the High Court had refused to interfere with it. But this contention does not appear to be correct if we look at the judgment of the High Court. It is clear that the High Court refused to disturb the finding the learned District Judge in regard to this question because it felt that in view of the Full Bench decision in C. K. Shahs case it was not necessary to consider the question of comparative hardship. The judgment of the High Court will, therefore, have to be set aside and the case will have to be remanded to the High Court for the purpose of considering the contention of the appellant in regard to comparative hardship in the light of the amended Section 21 read with Rule 16.
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Gyan Chand Vs. Kunjbeharilal and Ors | situated as if it were a decree passed by such Munsif or Civil. Judge, as the case may be. Next, section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate. Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites. 11. From a conspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act. One category of actions is taken to the lowest court of competent jurisdiction which is a civil court and the other category is lodged before the Magistrate on the executive side. 12. The word court, however, is not defined in the Act but for purposes of sections 19A, 19B and 19C. While the forums are specified for certain types of actions enumerated in the Act no court as such is specified in the Act for entertaining suits of eviction by landlord against a tenant. It is, therefore, manifest that such suits will lie in the ordinary civil court of competent jurisdiction. That court will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of controversies raised before it. The benefits conferred by the Act upon the tenants will have to be given by the civil court in trying eviction suits. Where there is a bar of eviction under the Act the court will have to give effect to it.As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest court of competent jurisdiction and some others before the Magistrate. There is a tertium quid, namely, the usual court which is available to the landlord for instituting suits for eviction against tenants. The landlord, however, will have to take note of the provisions under the Act and comply with those provisions in such a litigation. The tenant also, in such suits, will be able to claim all the benefits conferred upon him under the Act which the courts will, in appropriate cases, grant. 13. In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read: 22(1) From every decree or order passed by a. court under this Act, an appeal shall lie to the court to which appeals ordinarily lie from original decrees and orders passed by such former court. (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; (3) Any person aggrieved by an order of the. Magistrate may, within fifteen days from the date of-such order, appeal therefrom to the District Magistrate or such. authority. as the State Government may from time to time appoint in that month. It is very significant that while Section 22( 1 ) qualities the decree or order as being under this Act, Section 13A, on the contrary, does not describe proceeding to be under the Act. 14. Section 22(1) refers to every decree or order passed by a court under this Act. The decree or order passed. under this Act must, therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub-section (2) provides that no second appeal shall lie from any such decree or order. Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Courts power of revision is not barred. Sub-section (3), of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government. As noticed earlier Certain orders are passed by the Magistrate under section 1, (3), Section. 17 and section 19 Section , 22(3) makes provision of appeal against such orders passed under section 12(3), section 17 and section 19.It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act. There is no provision in the Act for institution of suits for eviction which will, there- fore, lie in the ordinary courts of competent jurisdiction. Appeals, also revisions, where competent, will lie against decrees in eviction suits in the usual hierarchy of Courts. 15. It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A(c) relate only to decrees in:suits for eviction based on the ground. of nonpayment of rent. Such appeals or applications for revision under section 13A(c) are not contemplated under section 22 of the Act. As shown above, decrees or orders passed by the court under the Act against which appeals and revisions are provided in Section 22 do not take in decrees or orders passed in a Suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in ease of decrees or orders passed under the Act to which a copious reference has been made hereinabove with reference to the various provisions of the Act. 16. With regard to execution proceedings, it. would appear that these are outside the scheme of clauses (a) to (c) of section 13A but it is unnecessary to express any firm opinion on that point since it does not arise in this appeal. 17. We are of opinion that the appellant cannot take advantage of section 13A in this appeal by special leave. | 0[ds]Thus it is manifest that t he appellant was fully aware of the proceedings that had taken place as also of the order that had been passed against the defendants striking out their defence.may be. stated at the outset that when the appellant applied for setting aside the ex parte order he gave no explanation whatsoever for his non-appearance in the suit, after the summonses were served on him but merely tried to explain his absence on November 26, 1968. We have already pointed out that the appellant knew very well that the defence had been struck , out by an order of the Court and had actually joined in the appeal and the revision flied by the other two defendants. In spite of that for two years he kept quiet and gave no explanation whatsoever for not appearing before the Court and participating in the proceedings until November 30, 1968. This delay of two years which has been seriously commented upon by the High Court has not been explained satisfactorily by the appellant.High Court has rightly pointed out that the conduct of the appellant in not giving any explanation for not participating in the proceedings despite service of the summonses speaks volumes against him. The argument of the appellant that the entire proceedings should be cancelled as they had taken place in his absence was rightly rejected by the High Court. In view of the concurrent findings of fact recorded on this point by the District Judge and the High Court, we are not at all inclined to interfere, in this appeal by special leave, with the merits of the case decided by the Courts below we are satisfied that the appellant was not diligent at all and has to thank his stars if the decision of the Courts below went against him In these circumstances, we do not propose to enter into merits of the appealsignificance of these Civil Miscellaneous Petitions appears to have been that if the special leave petition was not treated as a n appeal, then the moment the special leave was granted by this Court the appeal stood admitted by this Court and, therefore, the second application was filed for directions under s. 13A of the Act as amended.22. Thus a perusal of clause (6) of the statement of Objects and reasons would clearly show that the intention of , the Legislature was to confer certain benefits on the tenants to pending suits and proceedings for ejectment only on ground of defaults by giving them an opportunity to deposit the arrears within a specified time. It is nowhere mentioned in clause (6) that this benefit was to be extended beyond the frontiers of the State in appeals which Were not ordinary remedies but which were special remedies provided for under the Constitution. Thus the scope of the amendment was to confine the protection given to the tenants within the limits of the hierarchy of courts mentioned by the Act, and to the Courts in the State of Rajasthan. It may be noticed that the statement of, objects and reasons does not even give a hint that the benefit conferred by s. 13A would be available even in the execution proceedings after the decree had` been passed.23. 13A contemplates only three kinds of proceedings, namely, suits, appeals and applications for revisions and these proceedings must be under the Act , itself. Clause. (a) of s. 13A of the A ct provides that no court after the commencement of the mending ordinance shall pass any decree on the ground of non-payment of rent if the tenant applies and a s to the landlord the entire rent in arrears interest and full costs of the suit. Clause (b) requires that such an application is to be made within thirty days of the commencement of the amending ordinance on, Which the Court would determine the rent in arrears and direct, interest to be paid at the rate of six per cent per annum. Clauses (a) and (b) obviously do not apply to the present case, because the proceedings were not pending in any court when the ordinance or the Act came into force. Reliance was, however, placed on the word proceeding as appearing in clauses (a) and (b) in order to plead an argument that the word proceeding was wide enough to include not. only Suits, but appeals at a ll stages. This argument in our opinion is based on a serious misconception of the interpretation of the word proceeding. The Legislature has not left the connotation of the word proceeding in doubt because clause (b) of the Explanation clearly indicates what proceedings contemplated by s. 13A in clauses (a), (b) and (c) are. The Explanations clearly shows that proceeding means suit, appeal or application fo r revision. A logical interpretation of clause (b) of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute. In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act.Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revision to the High Court. The use of the words such proceeding in clause (b) of s. 13A fortifies our conclusion that the proceedings contemplated by s. 13A are really the proceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in s. 22 of the Act. In these circumstances we are unable to agree with the learned counsel for the appellant that proceedings in this Court would fall within the ambit o f clauses (a) and (b) of s. 13A of the Act.true that clause (e) applied the provisions of clauses (a) and (b) mutatis mutandis to appeals and applications for revision. It may be noticed, however, mat this benefit is not conferred even in the execution proceeding s arising out of decrees passed in suits or appeals and upheld in revisions. The true interpretation of clause (c) of s. 13A would, therefore, be that this clause also contemplated the same proceedings as contemplated by clauses (a) and (b), namely the proceedings indicated in the Explanation. Thus the benefit conferred by clause (c) would apply only to appeals or applications for revisions filed under the A ct as provided by s. 22 of the Act. The Legislature never intended to confer this benefit beyond the frontiers of the State.It was however, submitted that the word appeal is wide enough to include an appeal by special leave filed in this Court. It is, however, not possible to accept this contention. The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had come into force. An ap peal by special leave was a special remedy provided for by Art. 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the nomenclature of this remedy. If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause (c). Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear-cut distinction between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted. It was suggest ed that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of s. 13A. It is, however, not possible to accept this , contention, because the constituents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1(2) of the Code of Civil Procedure. Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to contain only the necessary facts and not the grounds. It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of s. 13A of the Act.25. It would thus appear that the provisions of r. 1 (2) of O. XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certificate by High Court is granted. The Legislature must be presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. If the intention was to extend the benefit of s. 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words application for special leave to Supreme Court should have been mentioned. The fact that clause (c) of s. 13A merely mentions the wordsfrom the date of the presentation of the memorandum of appeal or application for revision clearly indicate that the remedies contemplated by the Act are the remedies of appeal and revision as provided for by s. 22 of the Act. In fact, as already pointed out, the benefit conferred by s. 13A of the Act does not extend-even to the. execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided not by the State Legislature but by the Constitution itself.26. For these reasons, therefore, we reject the argument of the appellant that clause (c) of s. 13A of the Act would apply to the present appeal and that the appellant is, therefore, entitled to the benefit of this provision on the basis of the Civil Miscellaneous Petition filed by him. We are clearly of the opinion, on an interpretation of the various clauses of s. 13A of the Act and the Explanation thereto that the benefit under s. 13A has been intended by the Legislature to be conferred only on the appellate and revisional courts and even execution proceedings have been excluded from the ambit Of the protection granted. | 0 | 3,802 | 1,973 | ### 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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situated as if it were a decree passed by such Munsif or Civil. Judge, as the case may be. Next, section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate. Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites. 11. From a conspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act. One category of actions is taken to the lowest court of competent jurisdiction which is a civil court and the other category is lodged before the Magistrate on the executive side. 12. The word court, however, is not defined in the Act but for purposes of sections 19A, 19B and 19C. While the forums are specified for certain types of actions enumerated in the Act no court as such is specified in the Act for entertaining suits of eviction by landlord against a tenant. It is, therefore, manifest that such suits will lie in the ordinary civil court of competent jurisdiction. That court will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of controversies raised before it. The benefits conferred by the Act upon the tenants will have to be given by the civil court in trying eviction suits. Where there is a bar of eviction under the Act the court will have to give effect to it.As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest court of competent jurisdiction and some others before the Magistrate. There is a tertium quid, namely, the usual court which is available to the landlord for instituting suits for eviction against tenants. The landlord, however, will have to take note of the provisions under the Act and comply with those provisions in such a litigation. The tenant also, in such suits, will be able to claim all the benefits conferred upon him under the Act which the courts will, in appropriate cases, grant. 13. In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read: 22(1) From every decree or order passed by a. court under this Act, an appeal shall lie to the court to which appeals ordinarily lie from original decrees and orders passed by such former court. (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; (3) Any person aggrieved by an order of the. Magistrate may, within fifteen days from the date of-such order, appeal therefrom to the District Magistrate or such. authority. as the State Government may from time to time appoint in that month. It is very significant that while Section 22( 1 ) qualities the decree or order as being under this Act, Section 13A, on the contrary, does not describe proceeding to be under the Act. 14. Section 22(1) refers to every decree or order passed by a court under this Act. The decree or order passed. under this Act must, therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub-section (2) provides that no second appeal shall lie from any such decree or order. Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Courts power of revision is not barred. Sub-section (3), of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government. As noticed earlier Certain orders are passed by the Magistrate under section 1, (3), Section. 17 and section 19 Section , 22(3) makes provision of appeal against such orders passed under section 12(3), section 17 and section 19.It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act. There is no provision in the Act for institution of suits for eviction which will, there- fore, lie in the ordinary courts of competent jurisdiction. Appeals, also revisions, where competent, will lie against decrees in eviction suits in the usual hierarchy of Courts. 15. It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A(c) relate only to decrees in:suits for eviction based on the ground. of nonpayment of rent. Such appeals or applications for revision under section 13A(c) are not contemplated under section 22 of the Act. As shown above, decrees or orders passed by the court under the Act against which appeals and revisions are provided in Section 22 do not take in decrees or orders passed in a Suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in ease of decrees or orders passed under the Act to which a copious reference has been made hereinabove with reference to the various provisions of the Act. 16. With regard to execution proceedings, it. would appear that these are outside the scheme of clauses (a) to (c) of section 13A but it is unnecessary to express any firm opinion on that point since it does not arise in this appeal. 17. We are of opinion that the appellant cannot take advantage of section 13A in this appeal by special leave.
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logical interpretation of clause (b) of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute. In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act.Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revision to the High Court. The use of the words such proceeding in clause (b) of s. 13A fortifies our conclusion that the proceedings contemplated by s. 13A are really the proceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in s. 22 of the Act. In these circumstances we are unable to agree with the learned counsel for the appellant that proceedings in this Court would fall within the ambit o f clauses (a) and (b) of s. 13A of the Act.true that clause (e) applied the provisions of clauses (a) and (b) mutatis mutandis to appeals and applications for revision. It may be noticed, however, mat this benefit is not conferred even in the execution proceeding s arising out of decrees passed in suits or appeals and upheld in revisions. The true interpretation of clause (c) of s. 13A would, therefore, be that this clause also contemplated the same proceedings as contemplated by clauses (a) and (b), namely the proceedings indicated in the Explanation. Thus the benefit conferred by clause (c) would apply only to appeals or applications for revisions filed under the A ct as provided by s. 22 of the Act. The Legislature never intended to confer this benefit beyond the frontiers of the State.It was however, submitted that the word appeal is wide enough to include an appeal by special leave filed in this Court. It is, however, not possible to accept this contention. The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had come into force. An ap peal by special leave was a special remedy provided for by Art. 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the nomenclature of this remedy. If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause (c). Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear-cut distinction between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted. It was suggest ed that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of s. 13A. It is, however, not possible to accept this , contention, because the constituents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1(2) of the Code of Civil Procedure. Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to contain only the necessary facts and not the grounds. It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of s. 13A of the Act.25. It would thus appear that the provisions of r. 1 (2) of O. XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certificate by High Court is granted. The Legislature must be presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. If the intention was to extend the benefit of s. 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words application for special leave to Supreme Court should have been mentioned. The fact that clause (c) of s. 13A merely mentions the wordsfrom the date of the presentation of the memorandum of appeal or application for revision clearly indicate that the remedies contemplated by the Act are the remedies of appeal and revision as provided for by s. 22 of the Act. In fact, as already pointed out, the benefit conferred by s. 13A of the Act does not extend-even to the. execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided not by the State Legislature but by the Constitution itself.26. For these reasons, therefore, we reject the argument of the appellant that clause (c) of s. 13A of the Act would apply to the present appeal and that the appellant is, therefore, entitled to the benefit of this provision on the basis of the Civil Miscellaneous Petition filed by him. We are clearly of the opinion, on an interpretation of the various clauses of s. 13A of the Act and the Explanation thereto that the benefit under s. 13A has been intended by the Legislature to be conferred only on the appellate and revisional courts and even execution proceedings have been excluded from the ambit Of the protection granted.
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HIRANDRA KUMAR Vs. HIGH COURT OF JUDICATURE AT ALLAHABAD | of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The Courts power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut-off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cutoff date. (Emphasis supplied) 27. These judgments provide a clear answer to the challenge. The petitioners and the appellant desire that this Court should roll-back the date with reference to which attainment of the upper age limit of 48 years should be considered. Such an exercise is impermissible. In order to indicate the fallacy in the submission, it is significant to note that Rule 12 prescribes a minimum age of 35 years and an upper age limit of 45 years (48 years for reserved candidates belonging to the Scheduled Castes and Tribes). Under the Rule, the age limit is prescribed with reference to the first day of January of the year following the year in which the notice inviting applications is published. If the relevant date were to be rolled back, as desired by the petitioners, to an anterior point in time, it is true that some candidates who have crossed the upper age limit under Rule 12 may become eligible. But, interestingly that would affect candidates who on the anterior date may not have attained the minimum age of 35 years but would attain that age under the present Rule. We are adverting to this aspect only to emphasise that the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the rule making authority to discharge that function while framing the Rules. 28. We do not find any merit in the grievance of discrimination. For the purpose of determining whether a member of the Bar has fulfilled the requirement of seven years practice, the cut-off date is the last date for the submission of the applications. For the fulfillment of the age criterion, the cut-off date which is prescribed is the first day of January following the year in which a notice inviting applications is being published. Both the above cut-off dates are with reference to distinct requirements. The seven year practice requirement is referable to the provisions of Article 233(2) of the Constitution. The prescription of an age limit of 45 years, or as the case may be, of 48 years for reserved category candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS. 29. For the same reason, no case of discrimination or arbitrariness can be made out on the basis of a facial comparison of the Higher Judicial Service Rules, with the Rules governing Nyayik Sewa. Both sets of rules cater to different cadres. A case of discrimination cannot be made out on the basis of a comparison of two sets of rules which govern different cadres. 30. For the above reasons, we hold that there is no merit in the challenge to the constitutional validity of Rules 8 and 12. We concur with the reasoning of the High Court in upholding Rules 8 and 12 in the judgments noted earlier. 31. In the alternative, it has been urged on behalf of the petitioners that since they have been granted permission to appear at the examinations in pursuance of the interim directions that were issued during the pendency of these proceedings, the Court may exercise its jurisdiction under Article 142 of the Constitution of India to direct that the results be declared. 32. We are unable to accede to that request. For one thing, there would be other candidates who have not approached this Court and who would have been in the same position of not meeting the age criterion. Moreover, allowing a group of candidates to breach the age criterion by taking recourse to the power under Article 142 of the Constitution of India would, in our view not be appropriate inviting, as it does, a breach of the governing Rules for the UP Higher Judicial Service. 33. We find that the order of this Court in Sandeep Gupta vs. High Court of Judicature at Allahabad through Its Registrar General, Writ Petition (Civil) No. 594/2016, dated on 19 July 2018 is distinguishable. While taking recourse to the power vested in this Court under Article 142 of the Constitution of India, a two Judge Bench of this Court had observed that the order was passed in the peculiar facts and circumstances and shall not be treated as a precedent. Moreover, in that case, the results had already been declared which was a consideration which weighed with the Court in taking recourse to the power under Article 142. 34. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived. | 0[ds]17. The submission which was urged on behalf of the petitioners is based on the decision of this Court in Malik Mazhar Sultan (supra). While formulating a time schedule for the filling up of vacancies both in the Higher Judicial Service and at all other levels in the district judiciary, this Court was cognizant of the fact that recruitment rules are in operation in all the States and Union Territories. Bearing this in mind, this Court observed:5. Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and District Courts, it is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories. We may, however, note that, progressively, the authorities concerned would consider, discuss and eventually may arrive at a consensus that the selection process be conducted by the High Court itself or by the Public Service Commission under the control and supervision of the High Court.The directions which have been issued in Malik Mazhar Sultan (supra) are being monitored by this Court. The Allahabad High Court has been submitting progressive reports which are monitored by this Court for compliance. The purpose of the directions in Malik Mazhar Sultan (supra) was to ensure that vacancies in the district judiciary are not left unfilled over long periods of time, undermining the efficacy of the judicial system. Equally, the Court was cognizant of the fact that each High Court has its recruitment rules. It is in view of that background that the general implementation of the directions which have been issued is being continuously monitored.19. The directions in Malik Mazhar Sultan (supra) are intended to address the issue of vacancies in the district judiciary. Those directions do not override the prevailing rules which govern selections to the HJS in the States and the Union Territories nor do they create an enforceable right in any candidate for selection or to assert a right to age relaxation in violation of the rules. So long as the rules hold the field, a candidate in order to be eligible, must fulfil the requirements of age and other conditions which are prescribed by the Rules.20. The submission which has been urged in these proceedings is that the prescription of not later than three years in Rule 8 and of the upper age limit in Rule 12 is ultra vires and arbitrary. The validity of both Rules 8 and 12 has been addressed in decisions rendered by the Division Benches of the Allahabad High Court. The constitutional validity of Rule 8 has been upheld in Suraj Bali Singh (supra). The same submission that has been urged before this Court was considered in that decision by the Division Bench. A Special Leave Petition against the judgment in Suraj Bali Singh (supra) was withdrawn on 4 August 2017. The validity of Rule 12 has been upheld by another Division Bench of the Allahabad High Court in Sanjay Agarwal (supra).21. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.26. In Ramesh Chandra Agarwal (supra), the Council of Scientific and Industrial Research framed a scheme for the absorption of researchers working in their laboratories and institutes following the directions of this Court. It was prescribed that eligible applicants must have 15 years of continuous research on 2 May 1997. The Director was conferred powers to relax the requirement. Contending that that the tenure of researchers is ordinarily 13 years, the prescription of 15 years was challenged as being ultra vires and arbitrary. This contention was accepted by the High Court. On appeal, a two judge Bench of this Court examined the scheme and applicable avenues to researchers. Noting that there was no ceiling of 13 years on researchers, this Court upheld the prescription of 15 years and the cut-off date. The Court held thus:29. State is entitled to fix a cut-off date. Such a decision can be struck down only when it is arbitrary. Its invalidation may also depend upon the question as to whether it has a rational nexus with the object sought to be achieved. 2-5-1997 was the date fixed as the cut-off date in terms of the Scheme. The reason assigned therefore was that this was the date when this Court directed the appellants to consider framing of a regularisation scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr Patwalia, by choosing 2-5-1997 as the cut-off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.30. The High Court, however, proceeded on the basis that the cut-off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The Courts power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut-off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cutoff date.(Emphasis supplied)27. These judgments provide a clear answer to the challenge. The petitioners and the appellant desire that this Court should roll-back the date with reference to which attainment of the upper age limit of 48 years should be considered. Such an exercise is impermissible. In order to indicate the fallacy in the submission, it is significant to note that Rule 12 prescribes a minimum age of 35 years and an upper age limit of 45 years (48 years for reserved candidates belonging to the Scheduled Castes and Tribes). Under the Rule, the age limit is prescribed with reference to the first day of January of the year following the year in which the notice inviting applications is published. If the relevant date were to be rolled back, as desired by the petitioners, to an anterior point in time, it is true that some candidates who have crossed the upper age limit under Rule 12 may become eligible. But, interestingly that would affect candidates who on the anterior date may not have attained the minimum age of 35 years but would attain that age under the present Rule. We are adverting to this aspect only to emphasise that the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the rule making authority to discharge that function while framing the Rules.28. We do not find any merit in the grievance of discrimination. For the purpose of determining whether a member of the Bar has fulfilled the requirement of seven years practice, the cut-off date is the last date for the submission of the applications. For the fulfillment of the age criterion, the cut-off date which is prescribed is the first day of January following the year in which a notice inviting applications is being published. Both the above cut-off dates are with reference to distinct requirements. The seven year practice requirement is referable to the provisions of Article 233(2) of the Constitution. The prescription of an age limit of 45 years, or as the case may be, of 48 years for reserved category candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS.29. For the same reason, no case of discrimination or arbitrariness can be made out on the basis of a facial comparison of the Higher Judicial Service Rules, with the Rules governing Nyayik Sewa. Both sets of rules cater to different cadres. A case of discrimination cannot be made out on the basis of a comparison of two sets of rules which govern different cadres.30. For the above reasons, we hold that there is no merit in the challenge to the constitutional validity of Rules 8 and 12. We concur with the reasoning of the High Court in upholding Rules 8 and 12 in the judgments noted earlier.32. We are unable to accede to that request. For one thing, there would be other candidates who have not approached this Court and who would have been in the same position of not meeting the age criterion. Moreover, allowing a group of candidates to breach the age criterion by taking recourse to the power under Article 142 of the Constitution of India would, in our view not be appropriate inviting, as it does, a breach of the governing Rules for the UP Higher Judicial Service.33. We find that the order of this Court in Sandeep Gupta vs. High Court of Judicature at Allahabad through Its Registrar General, Writ Petition (Civil) No. 594/2016, dated on 19 July 2018 is distinguishable. While taking recourse to the power vested in this Court under Article 142 of the Constitution of India, a two Judge Bench of this Court had observed that the order was passed in the peculiar facts and circumstances and shall not be treated as a precedent. Moreover, in that case, the results had already been declared which was a consideration which weighed with the Court in taking recourse to the power under Article 142.34. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived. | 0 | 6,119 | 2,039 | ### Instruction:
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of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The Courts power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut-off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cutoff date. (Emphasis supplied) 27. These judgments provide a clear answer to the challenge. The petitioners and the appellant desire that this Court should roll-back the date with reference to which attainment of the upper age limit of 48 years should be considered. Such an exercise is impermissible. In order to indicate the fallacy in the submission, it is significant to note that Rule 12 prescribes a minimum age of 35 years and an upper age limit of 45 years (48 years for reserved candidates belonging to the Scheduled Castes and Tribes). Under the Rule, the age limit is prescribed with reference to the first day of January of the year following the year in which the notice inviting applications is published. If the relevant date were to be rolled back, as desired by the petitioners, to an anterior point in time, it is true that some candidates who have crossed the upper age limit under Rule 12 may become eligible. But, interestingly that would affect candidates who on the anterior date may not have attained the minimum age of 35 years but would attain that age under the present Rule. We are adverting to this aspect only to emphasise that the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the rule making authority to discharge that function while framing the Rules. 28. We do not find any merit in the grievance of discrimination. For the purpose of determining whether a member of the Bar has fulfilled the requirement of seven years practice, the cut-off date is the last date for the submission of the applications. For the fulfillment of the age criterion, the cut-off date which is prescribed is the first day of January following the year in which a notice inviting applications is being published. Both the above cut-off dates are with reference to distinct requirements. The seven year practice requirement is referable to the provisions of Article 233(2) of the Constitution. The prescription of an age limit of 45 years, or as the case may be, of 48 years for reserved category candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS. 29. For the same reason, no case of discrimination or arbitrariness can be made out on the basis of a facial comparison of the Higher Judicial Service Rules, with the Rules governing Nyayik Sewa. Both sets of rules cater to different cadres. A case of discrimination cannot be made out on the basis of a comparison of two sets of rules which govern different cadres. 30. For the above reasons, we hold that there is no merit in the challenge to the constitutional validity of Rules 8 and 12. We concur with the reasoning of the High Court in upholding Rules 8 and 12 in the judgments noted earlier. 31. In the alternative, it has been urged on behalf of the petitioners that since they have been granted permission to appear at the examinations in pursuance of the interim directions that were issued during the pendency of these proceedings, the Court may exercise its jurisdiction under Article 142 of the Constitution of India to direct that the results be declared. 32. We are unable to accede to that request. For one thing, there would be other candidates who have not approached this Court and who would have been in the same position of not meeting the age criterion. Moreover, allowing a group of candidates to breach the age criterion by taking recourse to the power under Article 142 of the Constitution of India would, in our view not be appropriate inviting, as it does, a breach of the governing Rules for the UP Higher Judicial Service. 33. We find that the order of this Court in Sandeep Gupta vs. High Court of Judicature at Allahabad through Its Registrar General, Writ Petition (Civil) No. 594/2016, dated on 19 July 2018 is distinguishable. While taking recourse to the power vested in this Court under Article 142 of the Constitution of India, a two Judge Bench of this Court had observed that the order was passed in the peculiar facts and circumstances and shall not be treated as a precedent. Moreover, in that case, the results had already been declared which was a consideration which weighed with the Court in taking recourse to the power under Article 142. 34. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived.
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could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr Patwalia, by choosing 2-5-1997 as the cut-off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.30. The High Court, however, proceeded on the basis that the cut-off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The Courts power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut-off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cutoff date.(Emphasis supplied)27. These judgments provide a clear answer to the challenge. The petitioners and the appellant desire that this Court should roll-back the date with reference to which attainment of the upper age limit of 48 years should be considered. Such an exercise is impermissible. In order to indicate the fallacy in the submission, it is significant to note that Rule 12 prescribes a minimum age of 35 years and an upper age limit of 45 years (48 years for reserved candidates belonging to the Scheduled Castes and Tribes). Under the Rule, the age limit is prescribed with reference to the first day of January of the year following the year in which the notice inviting applications is published. If the relevant date were to be rolled back, as desired by the petitioners, to an anterior point in time, it is true that some candidates who have crossed the upper age limit under Rule 12 may become eligible. But, interestingly that would affect candidates who on the anterior date may not have attained the minimum age of 35 years but would attain that age under the present Rule. We are adverting to this aspect only to emphasise that the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the rule making authority to discharge that function while framing the Rules.28. We do not find any merit in the grievance of discrimination. For the purpose of determining whether a member of the Bar has fulfilled the requirement of seven years practice, the cut-off date is the last date for the submission of the applications. For the fulfillment of the age criterion, the cut-off date which is prescribed is the first day of January following the year in which a notice inviting applications is being published. Both the above cut-off dates are with reference to distinct requirements. The seven year practice requirement is referable to the provisions of Article 233(2) of the Constitution. The prescription of an age limit of 45 years, or as the case may be, of 48 years for reserved category candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS.29. For the same reason, no case of discrimination or arbitrariness can be made out on the basis of a facial comparison of the Higher Judicial Service Rules, with the Rules governing Nyayik Sewa. Both sets of rules cater to different cadres. A case of discrimination cannot be made out on the basis of a comparison of two sets of rules which govern different cadres.30. For the above reasons, we hold that there is no merit in the challenge to the constitutional validity of Rules 8 and 12. We concur with the reasoning of the High Court in upholding Rules 8 and 12 in the judgments noted earlier.32. We are unable to accede to that request. For one thing, there would be other candidates who have not approached this Court and who would have been in the same position of not meeting the age criterion. Moreover, allowing a group of candidates to breach the age criterion by taking recourse to the power under Article 142 of the Constitution of India would, in our view not be appropriate inviting, as it does, a breach of the governing Rules for the UP Higher Judicial Service.33. We find that the order of this Court in Sandeep Gupta vs. High Court of Judicature at Allahabad through Its Registrar General, Writ Petition (Civil) No. 594/2016, dated on 19 July 2018 is distinguishable. While taking recourse to the power vested in this Court under Article 142 of the Constitution of India, a two Judge Bench of this Court had observed that the order was passed in the peculiar facts and circumstances and shall not be treated as a precedent. Moreover, in that case, the results had already been declared which was a consideration which weighed with the Court in taking recourse to the power under Article 142.34. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived.
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Sita Ram Bishambher Dayal & Ors Vs. State Of U.P. & Ors | modulated to meet the exigencies of the situation. In a Cabinet form of Government the executive is expected to reflect the views of the legislatures. In fact in most matters it gives the lead to the legislature. However much one might deplore the New Despotism of the executive the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date. Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it. The legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible. 6. In State of Madras v. Gannon Dunkerley Co. (Madras) Ltd., 1959 SCR 379 = (AIR 1958 SC 560 ) this Court observed:"Now, the authorities are clear that it is now unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be charged in respect of different classes of goods and the like." 7. It was not contended before us that the power delegated to the executive to select the goods on which the purchase tax is to be levied was an excessive delegation nor was it contended that the power granted to the executive to determine the rate of pay by itself amounts to an excessive delegation. All that was said was that in empowering the Government to levy tax on goods other than foodgrains at a rate not exceeding 5 paise in a rupees the legislature parted with one of its essential legislative functions as the power given to the executive is an unduly wide one. We are unable to accede to this contention. Whether a power delegated by the legislature to the executive has exceeded the permissible limits in a given case depends on its facts and circumstances. That question does not admit of any general rule. It depends upon the nature of the power delegated and the purposes intended to be achieved. Taking into consideration the legislative practice in this country and the rate of tax levied or leviable under the various sales tax laws in force in this country, it cannot be said that the power delegated to the executive is excessive. In Devi Dass Gopal Krishnan v. State of Punjab 20 STC 430 = (AIR 1958 SC 1895) this Court ruled that it is open to the legislature to delegate the power of fixing the rate of purchase tax or sales tax if the legislature prescribes a reasonable upper limit. 8. We are unable to accept the contention of Mr. Goyal learned Counsel for the appellant that the Maximum rate fixed under Section 3-D is unreasonably high. At any rate there is no material before us on the basis of which, we can come to that conclusion. 9. This takes us to the contention that Section 3-D is ultra vires Art. 14 of the Constitution. The argument on this question proceeds thus : The explanation to Section 3-D provides that in the case of purchase made by a registered dealer through the agency of a licensed dealer, the registered dealer would be deemed to be the first purchaser whereas in every other case of first purchase made through the agency of a dealer, the dealer who is the agent would be deemed to be the first purchaser. This difference according to Mr. Goyal is discriminatory in character. He urged that there was no justification for making an agent liable to pay sales tax merely because he is an unlicensed agent. According to him there is no rational distinction between the purchases made through licensed dealers and those made through unlicensed dealers. 10. The power to levy tax includes within itself the power to provide against evasion of tax. A licensed dealer has to function according to the conditions of his licence. He is bound to maintain true and correct accounts of his day to day transactions of sales and purchases of goods notified in sub-section (1) of Sec. 3-D in an intelligible form and in such manner, if any, as may be prescribed and further he must furnish to the assessing authority the details of the aforesaid transaction together with the name and particulars of the purchaser and the number and date of the registration certificate filed by the purchaser under Section 8-A and such other information regarding the transactions as may subject to rule, if any, in this behalf be required. 11. Hence whenever a purchase is made through a licensed agent, the authorities have the opportunity to know what purchases have been made and from whom those purchases were made but hat would not be the case when purchases are made through dealers who are not licensed. They are not required by law to maintain any accounts or submit any returns. Hence if registered dealers are permitted to make purchases through dealers who are not licensed and those dealers themselves are not liable to be taxed then opportunity for evasion becomes larger. The rule of discrimination does into rule out classification. The power of classification under a fiscal law is larger than in the case of other laws. Hence there was nothing wrong in the legislature making a classification between licensed dealers and dealers who are not licensed. Even when a dealer who is not licensed is liable to pay purchase tax, the ultimate burden falls on his principal. For these reasons, we do not see any basis for the contention that Section 3-D is violative of Article 14. | 0[ds]5. It is true that the power to fix the rate of a tax is a legislative power but if the legislature lays down the legislative policy and provides the necessary guidelines, that power can be delegated to the executive. Though a tax is levied primarily for the purpose of gathering revenue, in selecting the objects to be taxed and in determining the rates of tax, various economic and social aspects such as the availability of the goods, administrative convenience, the extent of evasion, the impact of tax levied on the various sections of the society etc. have to be considered. In a modern society taxation is an instrument of planning. It can be used to achieve the economic and social goals of the State. For that reason the power to tax must be a flexible power. It must be capable of being modulated to meet the exigencies of the situation. In a Cabinet form of Government the executive is expected to reflect the views of the legislatures. In fact in most matters it gives the lead to the legislature. However much one might deplore the New Despotism of the executive the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date. Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it. The legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible8. We are unable to accept the contention of Mr. Goyal learned Counsel for the appellant that the Maximum rate fixed under Section 3-D is unreasonably high. At any rate there is no material before us on the basis of which, we can come to that conclusion10. The power to levy tax includes within itself the power to provide against evasion of tax. A licensed dealer has to function according to the conditions of his licence. He is bound to maintain true and correct accounts of his day to day transactions of sales and purchases of goods notified in sub-section (1) of Sec. 3-D in an intelligible form and in such manner, if any, as may be prescribed and further he must furnish to the assessing authority the details of the aforesaid transaction together with the name and particulars of the purchaser and the number and date of the registration certificate filed by the purchaser under Section 8-A and such other information regarding the transactions as may subject to rule, if any, in this behalf be required11. Hence whenever a purchase is made through a licensed agent, the authorities have the opportunity to know what purchases have been made and from whom those purchases were made but hat would not be the case when purchases are made through dealers who are not licensed. They are not required by law to maintain any accounts or submit any returns. Hence if registered dealers are permitted to make purchases through dealers who are not licensed and those dealers themselves are not liable to be taxed then opportunity for evasion becomes larger. The rule of discrimination does into rule out classification. The power of classification under a fiscal law is larger than in the case of other laws. Hence there was nothing wrong in the legislature making a classification between licensed dealers and dealers who are not licensed. Even when a dealer who is not licensed is liable to pay purchase tax, the ultimate burden falls on his principal. For these reasons, we do not see any basis for the contention that Section 3-D is violative of Article 14. | 0 | 1,730 | 720 | ### Instruction:
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modulated to meet the exigencies of the situation. In a Cabinet form of Government the executive is expected to reflect the views of the legislatures. In fact in most matters it gives the lead to the legislature. However much one might deplore the New Despotism of the executive the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date. Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it. The legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible. 6. In State of Madras v. Gannon Dunkerley Co. (Madras) Ltd., 1959 SCR 379 = (AIR 1958 SC 560 ) this Court observed:"Now, the authorities are clear that it is now unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be charged in respect of different classes of goods and the like." 7. It was not contended before us that the power delegated to the executive to select the goods on which the purchase tax is to be levied was an excessive delegation nor was it contended that the power granted to the executive to determine the rate of pay by itself amounts to an excessive delegation. All that was said was that in empowering the Government to levy tax on goods other than foodgrains at a rate not exceeding 5 paise in a rupees the legislature parted with one of its essential legislative functions as the power given to the executive is an unduly wide one. We are unable to accede to this contention. Whether a power delegated by the legislature to the executive has exceeded the permissible limits in a given case depends on its facts and circumstances. That question does not admit of any general rule. It depends upon the nature of the power delegated and the purposes intended to be achieved. Taking into consideration the legislative practice in this country and the rate of tax levied or leviable under the various sales tax laws in force in this country, it cannot be said that the power delegated to the executive is excessive. In Devi Dass Gopal Krishnan v. State of Punjab 20 STC 430 = (AIR 1958 SC 1895) this Court ruled that it is open to the legislature to delegate the power of fixing the rate of purchase tax or sales tax if the legislature prescribes a reasonable upper limit. 8. We are unable to accept the contention of Mr. Goyal learned Counsel for the appellant that the Maximum rate fixed under Section 3-D is unreasonably high. At any rate there is no material before us on the basis of which, we can come to that conclusion. 9. This takes us to the contention that Section 3-D is ultra vires Art. 14 of the Constitution. The argument on this question proceeds thus : The explanation to Section 3-D provides that in the case of purchase made by a registered dealer through the agency of a licensed dealer, the registered dealer would be deemed to be the first purchaser whereas in every other case of first purchase made through the agency of a dealer, the dealer who is the agent would be deemed to be the first purchaser. This difference according to Mr. Goyal is discriminatory in character. He urged that there was no justification for making an agent liable to pay sales tax merely because he is an unlicensed agent. According to him there is no rational distinction between the purchases made through licensed dealers and those made through unlicensed dealers. 10. The power to levy tax includes within itself the power to provide against evasion of tax. A licensed dealer has to function according to the conditions of his licence. He is bound to maintain true and correct accounts of his day to day transactions of sales and purchases of goods notified in sub-section (1) of Sec. 3-D in an intelligible form and in such manner, if any, as may be prescribed and further he must furnish to the assessing authority the details of the aforesaid transaction together with the name and particulars of the purchaser and the number and date of the registration certificate filed by the purchaser under Section 8-A and such other information regarding the transactions as may subject to rule, if any, in this behalf be required. 11. Hence whenever a purchase is made through a licensed agent, the authorities have the opportunity to know what purchases have been made and from whom those purchases were made but hat would not be the case when purchases are made through dealers who are not licensed. They are not required by law to maintain any accounts or submit any returns. Hence if registered dealers are permitted to make purchases through dealers who are not licensed and those dealers themselves are not liable to be taxed then opportunity for evasion becomes larger. The rule of discrimination does into rule out classification. The power of classification under a fiscal law is larger than in the case of other laws. Hence there was nothing wrong in the legislature making a classification between licensed dealers and dealers who are not licensed. Even when a dealer who is not licensed is liable to pay purchase tax, the ultimate burden falls on his principal. For these reasons, we do not see any basis for the contention that Section 3-D is violative of Article 14.
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5. It is true that the power to fix the rate of a tax is a legislative power but if the legislature lays down the legislative policy and provides the necessary guidelines, that power can be delegated to the executive. Though a tax is levied primarily for the purpose of gathering revenue, in selecting the objects to be taxed and in determining the rates of tax, various economic and social aspects such as the availability of the goods, administrative convenience, the extent of evasion, the impact of tax levied on the various sections of the society etc. have to be considered. In a modern society taxation is an instrument of planning. It can be used to achieve the economic and social goals of the State. For that reason the power to tax must be a flexible power. It must be capable of being modulated to meet the exigencies of the situation. In a Cabinet form of Government the executive is expected to reflect the views of the legislatures. In fact in most matters it gives the lead to the legislature. However much one might deplore the New Despotism of the executive the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date. Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it. The legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible8. We are unable to accept the contention of Mr. Goyal learned Counsel for the appellant that the Maximum rate fixed under Section 3-D is unreasonably high. At any rate there is no material before us on the basis of which, we can come to that conclusion10. The power to levy tax includes within itself the power to provide against evasion of tax. A licensed dealer has to function according to the conditions of his licence. He is bound to maintain true and correct accounts of his day to day transactions of sales and purchases of goods notified in sub-section (1) of Sec. 3-D in an intelligible form and in such manner, if any, as may be prescribed and further he must furnish to the assessing authority the details of the aforesaid transaction together with the name and particulars of the purchaser and the number and date of the registration certificate filed by the purchaser under Section 8-A and such other information regarding the transactions as may subject to rule, if any, in this behalf be required11. Hence whenever a purchase is made through a licensed agent, the authorities have the opportunity to know what purchases have been made and from whom those purchases were made but hat would not be the case when purchases are made through dealers who are not licensed. They are not required by law to maintain any accounts or submit any returns. Hence if registered dealers are permitted to make purchases through dealers who are not licensed and those dealers themselves are not liable to be taxed then opportunity for evasion becomes larger. The rule of discrimination does into rule out classification. The power of classification under a fiscal law is larger than in the case of other laws. Hence there was nothing wrong in the legislature making a classification between licensed dealers and dealers who are not licensed. Even when a dealer who is not licensed is liable to pay purchase tax, the ultimate burden falls on his principal. For these reasons, we do not see any basis for the contention that Section 3-D is violative of Article 14.
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State Bank of India Vs. Special Secretary Land and Land Revenue and Reforms and Land and Land Utilisation Deptt. of W.B. and Others | or otherwise attracts any of the exemptions envisaged under Section 19 of the Act. It is true, as held by this Court, in W.O. Holdsworth case , that whatever be the position of a trustee or a Trust under English law, under Section 3 of the Indian Trusts Act (Trusts Act for short) a trust is an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another or of another or the owner, and puts the trustee thereof under an obligation of executing (sic) the person who reposes or declares the confidence is called the "trustee" (sic); the person for whose benefit the confidence is accepted is called the "beneficiary", the subject-matter of the trust called "trust property" or "trust money" and the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property, and the instrument, if any, by which the trust is declared, is called the "instrument of trust". The provisions in Section 3 of the Trusts Act, as seen, emphasise the fact that the beneficiary has a right to obtain his beneficial interest or interest against the trustee as owner of the trust property. The trustee, therefore, would, no doubt, become trust propertys owner for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose. The question which, therefore, arises for our consideration is, whether the owning by State Bank of India of vacant land - the trust property as a trustee for the purpose of discharging the obligations annexed to that property as envisaged under Trusts Act, in the course of executing the trust of administering trust properties, for the benefit of beneficiaries - is to hold such vacant land, i.e., to own such land or to possess such land as owner, as envisaged under Section 19 of the Act, so as to attract the exemption given thereunder 7. Vacant land held under Section 19 of the Act by the State Bank of India must be vacant land owned or possessed as owner thereof because of the definition clause (l) of Section 2 of Act. However, it is difficult for us to think that such owning or possessing as owner of the vacant land by the State Bank of India, could be regarded as referable to any land other than that vacant land to be owned or acquired by it under sub-section (6) of Section 34 of State Bank of India Act for the purpose of providing buildings or other accommodation in which to carry on the business of the State or for providing residences for its officers and other employees. It is equally difficult for us to think that the vacant land held, that is, owned or possessed as owner by any other bank specified in Section 19 of the Act is not its owner with all the rights of ownership including the right of disposal vested in it. Therefore, when the Bank holds the trust properties in due course of executing and administering the trust for the benefit of beneficiaries, it does not hold such property "as the owner" or "possess as owner" envisaged under the Act. In our considered view, no bank holds trust properties as owner envisaged under Section 19 of the Act or possess vacant land as envisaged under Section 19 of the Act. Thus, a bank even though regarded under Trusts Act as the owner of trust property-vacant land for the purpose of executing or administering a trust, it cannot hold a trust property-vacant land as its owner or possessed as owner as could make that land eligible for the benefit of exemption envisaged under Section 19 of the Act. However, it was urged by Dr Shankar Ghosh that if a property held by a public charitable or religious trust is exempted under Section 19 of the Act so long it is required or used for such purpose, private trust also becomes entitled to such exemptions, if the property held by it is used for a charitable purpose. This argument has to be considered in the light of the object sought to be achieved by the Act and not independently of it. The object of the Act is to take over the urban land found in excess of the ceiling area and to utilise the same for public good. The vacant lands found in excess of ceiling areas which become entitled to the benefit of exemption under Section 19 or Section 20, as seen therefrom are those vacant lands which are meant to serve public purposes and not private purpose. Therefore, anyone who is entrusted under a private trust to discharge certain duties as trustee thereof, cannot claim exemption respecting the property of that trust under Section 19(1)(iv). When a bank, which in the course of carrying on its commercial activities under Section 6 of the Banking Regulation Act is required to discharge its duties as the executor or trustee under a will in administering an estate, it does not hold the trust property-vacant land as an executor or trustee of a public charitable or religious trust as would entitle it to claim exemption under Section 19 of the Act, inasmuch as, such trust property-vacant land cannot be that which is required or used for public or charitable purpose. If the provisions of the State Bank of India Act, the Banking Regulation Act and the Trusts Act, to which we have adverted, are understood as pointed out, in their right perspective, the property-vacant land held by a bank as a trustee or executor under a will in the course of carrying on its business cannot get the benefit of exemption envisaged under Section 19(1)(iv) of the Act. The question considered by us is answered, accordingly, though for reasons different from those given by the High Court | 0[ds]It is true, as held by this Court, in W.O. Holdsworth case , that whatever be the position of a trustee or a Trust under English law, under Section 3 of the Indian Trusts Act (Trusts Act for short) a trust is an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another or of another or the owner, and puts the trustee thereof under an obligation of executing (sic) the person who reposes or declares the confidence is called the "trustee" (sic); the person for whose benefit the confidence is accepted is called the "beneficiary", theof the trust called "trust property" or "trust money" and the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property, and the instrument, if any, by which the trust is declared, is called the "instrument of trust". The provisions in Section 3 of the Trusts Act, as seen, emphasise the fact that the beneficiary has a right to obtain his beneficial interest or interest against the trustee as owner of the trust property. The trustee, therefore, would, no doubt, become trust propertys owner for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose. The question which, therefore, arises for our consideration is, whether the owning by State Bank of India of vacant landthe trust property as a trustee for the purpose of discharging the obligations annexed to that property as envisaged under Trusts Act, in the course of executing the trust of administering trust properties, for the benefit of beneficiariesis to hold such vacant land, i.e., to own such land or to possess such land as owner, as envisaged under Section 19 of the Act, so as to attract the exemption given thereunderour considered view, no bank holds trust properties as owner envisaged under Section 19 of the Act or possess vacant land as envisaged under Section 19 of the Act. Thus, a bank even though regarded under Trusts Act as the owner of trustland for the purpose of executing or administering a trust, it cannot hold a trustland as its owner or possessed as owner as could make that land eligible for the benefit of exemption envisaged under Section 19 of the Act. However, it was urged by Dr Shankar Ghosh that if a property held by a public charitable or religious trust is exempted under Section 19 of the Act so long it is required or used for such purpose, private trust also becomes entitled to such exemptions, if the property held by it is used for a charitable purpose. This argument has to be considered in the light of the object sought to be achieved by the Act and not independently of it. The object of the Act is to take over the urban land found in excess of the ceiling area and to utilise the same for public good. The vacant lands found in excess of ceiling areas which become entitled to the benefit of exemption under Section 19 or Section 20, as seen therefrom are those vacant lands which are meant to serve public purposes and not private purpose. Therefore, anyone who is entrusted under a private trust to discharge certain duties as trustee thereof, cannot claim exemption respecting the property of that trust under Section 19(1)(iv). When a bank, which in the course of carrying on its commercial activities under Section 6 of the Banking Regulation Act is required to discharge its duties as the executor or trustee under a will in administering an estate, it does not hold the trustland as an executor or trustee of a public charitable or religious trust as would entitle it to claim exemption under Section 19 of the Act, inasmuch as, such trustland cannot be that which is required or used for public or charitable purpose. If the provisions of the State Bank of India Act, the Banking Regulation Act and the Trusts Act, to which we have adverted, are understood as pointed out, in their right perspective, theland held by a bank as a trustee or executor under a will in the course of carrying on its business cannot get the benefit of exemption envisaged under Section 19(1)(iv) of the Act. The question considered by us is answered, accordingly, though for reasons different from those given by the High Court | 0 | 3,741 | 856 | ### 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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or otherwise attracts any of the exemptions envisaged under Section 19 of the Act. It is true, as held by this Court, in W.O. Holdsworth case , that whatever be the position of a trustee or a Trust under English law, under Section 3 of the Indian Trusts Act (Trusts Act for short) a trust is an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another or of another or the owner, and puts the trustee thereof under an obligation of executing (sic) the person who reposes or declares the confidence is called the "trustee" (sic); the person for whose benefit the confidence is accepted is called the "beneficiary", the subject-matter of the trust called "trust property" or "trust money" and the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property, and the instrument, if any, by which the trust is declared, is called the "instrument of trust". The provisions in Section 3 of the Trusts Act, as seen, emphasise the fact that the beneficiary has a right to obtain his beneficial interest or interest against the trustee as owner of the trust property. The trustee, therefore, would, no doubt, become trust propertys owner for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose. The question which, therefore, arises for our consideration is, whether the owning by State Bank of India of vacant land - the trust property as a trustee for the purpose of discharging the obligations annexed to that property as envisaged under Trusts Act, in the course of executing the trust of administering trust properties, for the benefit of beneficiaries - is to hold such vacant land, i.e., to own such land or to possess such land as owner, as envisaged under Section 19 of the Act, so as to attract the exemption given thereunder 7. Vacant land held under Section 19 of the Act by the State Bank of India must be vacant land owned or possessed as owner thereof because of the definition clause (l) of Section 2 of Act. However, it is difficult for us to think that such owning or possessing as owner of the vacant land by the State Bank of India, could be regarded as referable to any land other than that vacant land to be owned or acquired by it under sub-section (6) of Section 34 of State Bank of India Act for the purpose of providing buildings or other accommodation in which to carry on the business of the State or for providing residences for its officers and other employees. It is equally difficult for us to think that the vacant land held, that is, owned or possessed as owner by any other bank specified in Section 19 of the Act is not its owner with all the rights of ownership including the right of disposal vested in it. Therefore, when the Bank holds the trust properties in due course of executing and administering the trust for the benefit of beneficiaries, it does not hold such property "as the owner" or "possess as owner" envisaged under the Act. In our considered view, no bank holds trust properties as owner envisaged under Section 19 of the Act or possess vacant land as envisaged under Section 19 of the Act. Thus, a bank even though regarded under Trusts Act as the owner of trust property-vacant land for the purpose of executing or administering a trust, it cannot hold a trust property-vacant land as its owner or possessed as owner as could make that land eligible for the benefit of exemption envisaged under Section 19 of the Act. However, it was urged by Dr Shankar Ghosh that if a property held by a public charitable or religious trust is exempted under Section 19 of the Act so long it is required or used for such purpose, private trust also becomes entitled to such exemptions, if the property held by it is used for a charitable purpose. This argument has to be considered in the light of the object sought to be achieved by the Act and not independently of it. The object of the Act is to take over the urban land found in excess of the ceiling area and to utilise the same for public good. The vacant lands found in excess of ceiling areas which become entitled to the benefit of exemption under Section 19 or Section 20, as seen therefrom are those vacant lands which are meant to serve public purposes and not private purpose. Therefore, anyone who is entrusted under a private trust to discharge certain duties as trustee thereof, cannot claim exemption respecting the property of that trust under Section 19(1)(iv). When a bank, which in the course of carrying on its commercial activities under Section 6 of the Banking Regulation Act is required to discharge its duties as the executor or trustee under a will in administering an estate, it does not hold the trust property-vacant land as an executor or trustee of a public charitable or religious trust as would entitle it to claim exemption under Section 19 of the Act, inasmuch as, such trust property-vacant land cannot be that which is required or used for public or charitable purpose. If the provisions of the State Bank of India Act, the Banking Regulation Act and the Trusts Act, to which we have adverted, are understood as pointed out, in their right perspective, the property-vacant land held by a bank as a trustee or executor under a will in the course of carrying on its business cannot get the benefit of exemption envisaged under Section 19(1)(iv) of the Act. The question considered by us is answered, accordingly, though for reasons different from those given by the High Court
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### Explanation:
It is true, as held by this Court, in W.O. Holdsworth case , that whatever be the position of a trustee or a Trust under English law, under Section 3 of the Indian Trusts Act (Trusts Act for short) a trust is an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another or of another or the owner, and puts the trustee thereof under an obligation of executing (sic) the person who reposes or declares the confidence is called the "trustee" (sic); the person for whose benefit the confidence is accepted is called the "beneficiary", theof the trust called "trust property" or "trust money" and the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property, and the instrument, if any, by which the trust is declared, is called the "instrument of trust". The provisions in Section 3 of the Trusts Act, as seen, emphasise the fact that the beneficiary has a right to obtain his beneficial interest or interest against the trustee as owner of the trust property. The trustee, therefore, would, no doubt, become trust propertys owner for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose. The question which, therefore, arises for our consideration is, whether the owning by State Bank of India of vacant landthe trust property as a trustee for the purpose of discharging the obligations annexed to that property as envisaged under Trusts Act, in the course of executing the trust of administering trust properties, for the benefit of beneficiariesis to hold such vacant land, i.e., to own such land or to possess such land as owner, as envisaged under Section 19 of the Act, so as to attract the exemption given thereunderour considered view, no bank holds trust properties as owner envisaged under Section 19 of the Act or possess vacant land as envisaged under Section 19 of the Act. Thus, a bank even though regarded under Trusts Act as the owner of trustland for the purpose of executing or administering a trust, it cannot hold a trustland as its owner or possessed as owner as could make that land eligible for the benefit of exemption envisaged under Section 19 of the Act. However, it was urged by Dr Shankar Ghosh that if a property held by a public charitable or religious trust is exempted under Section 19 of the Act so long it is required or used for such purpose, private trust also becomes entitled to such exemptions, if the property held by it is used for a charitable purpose. This argument has to be considered in the light of the object sought to be achieved by the Act and not independently of it. The object of the Act is to take over the urban land found in excess of the ceiling area and to utilise the same for public good. The vacant lands found in excess of ceiling areas which become entitled to the benefit of exemption under Section 19 or Section 20, as seen therefrom are those vacant lands which are meant to serve public purposes and not private purpose. Therefore, anyone who is entrusted under a private trust to discharge certain duties as trustee thereof, cannot claim exemption respecting the property of that trust under Section 19(1)(iv). When a bank, which in the course of carrying on its commercial activities under Section 6 of the Banking Regulation Act is required to discharge its duties as the executor or trustee under a will in administering an estate, it does not hold the trustland as an executor or trustee of a public charitable or religious trust as would entitle it to claim exemption under Section 19 of the Act, inasmuch as, such trustland cannot be that which is required or used for public or charitable purpose. If the provisions of the State Bank of India Act, the Banking Regulation Act and the Trusts Act, to which we have adverted, are understood as pointed out, in their right perspective, theland held by a bank as a trustee or executor under a will in the course of carrying on its business cannot get the benefit of exemption envisaged under Section 19(1)(iv) of the Act. The question considered by us is answered, accordingly, though for reasons different from those given by the High Court
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N.D. Bhatt, Inspecting Assistant Commissioner of Income Tax and Another Vs. I.B.M. World Trade Corporation | 22nd November, 1974 the assessee had voluntarily disclosed to the Commissioner of Income-tax the error in calculation of headquarters expenses. The excess debit has arisen because larger expenses of the region office rather than the area office have been taken into account. The assessee has voluntarily disclosed this error on learning of it, has calculated the excess income and paid tax on self assessment on this additional income. All this was done long prior to the notices being issued to the assessee under section 148 in respect of these Assessment Years. The contention of Dr. Balasubramniam in this connection is, therefore, without merit.18. It is also well settled that the reasons for reopening are required to be recorded by the assessing authority before issuing any notice under section 148 by virtue of the provisions of section 148(2) at the relevant time. Only the reasons so recorded can be looked at for sustaining or setting aside a notice issued under section 148. In the case of (Equitable Investment Co. (P.) Ltd. v. Income-tax Officer)5, reported is 174 I.T.R. page 714, a Division Bench of the Calcutta High Court has held that where a notice issued under section 148 of the Income-Tax Act, 1961, after obtaining the sanction of the Commissioner of Income-tax, is challenged, the only document to be looked into for determining the validity of the notice is the report on the basis of which the sanction of the Commissioner of Income-tax has been obtained . The Income-tax Department cannot rely on any other material apart from the report. In the case before it, the Calcutta High Court refused to take into consideration the affidavit filed by the Income-Tax Department giving some additional reasons. In the present case, the reasons which are given by the Inspecting Assistant Commissioner for re-opening the assessments which are annexed to the affidavit in rejoinder of the appellants are to the effect that in respect of the assessment years 1967-68 to 1973-74 there are errors in the principle of allocating headquarters expenses to India which have been deducted. The net effect is that there has been an excess charge of headquarters expenses allocated to India. Each of the notices sets out the relevant error for the accounting year. The reasons, therefore, do not indicate in any manner any deliberate omission or suppression of any fact or of this error, on the part of the assessee at the time of the original assessment. Nor do these reasons allege that the assessee was in possession of the facts which it has failed to prove. In these circumstances, the provisions of section 147(a) are not attracted.19. It is also contended by the appellants that the sanction which is granted by the Commissioner for Assesment Years 1967-68 to 1973-74 under section 151 of the Income-tax Act, 1961 is without any application of mind, because below the reasons so disclosed it is found that the sanctioning authority has merely said `yes. According to the appellants, looking to the reasons set out, it should have been clear to the sanctioning authority that there was no failure or omission on the part of the assessee to disclose any material fact. Had the sanctioning authority applied its mind, it would not have given such a sanction. The appellant/assessee relied on the decision in the case of (Chhugamal Rajpal v. S.P. Chaliha)6, reported in 79 I.T.R. page 603, where the Supreme Court on the facts before it held that the Income-tax Officer had not even come to a prima facie conclusion that the loan transactions to which he referred were not genuine transactions. His conclusions that there was a case for investigating the truth of the alleged transactions was not the same thing as saying that there were reasons for the issue of the notice. The Commissioner had mechanically accorded permission for issue of notice. In that case also the Commissioner had merely added the word `yes and fixed his signature. The Court came to the conclusion that the Commissioner had not applied his mind. We are not willing to read this case as laying down that where the Commissioner only adds a word `yes, he has not applied his mind. This will depend upon the facts and circumstances of each case. In the present case, however, looking to the reasons which have been recorded and which were before the Commissioner, there is nothing which would indicate that there was any omission on the part of the assessee to furnish any material facts. In fact the reasons themselves describe this so-called omission and failure as an inadvertant error in the principle of allocating expenses. In these circumstances, the sanction ought not to have been given by the Commissioner. But we need not press this aspect of the case in support of our conclusion in view of our finding that in any case, the notices under section 148 have been issued without the provisions of section 147(a) being attracted to the facts and circumstances of the case.20. The appellant/assessee has also objected to the large number of queries raised by the assessing authority in the course of the assessment which clearly indicate that the entire assessment on all aspects was being reopened for each of the assessment years. The appellant/assessee has submitted that when the reassessment is on a specific ground, the reassessment should ordinarily be confined to determine the income which has escaped assessment. It was submitted that the entire assessment could not have been reopened by the department in any event. The appellant/assessee has relied upon the decision of the Supreme Court in the case of (Commissioner of Income-tax v. Sun Engineering Works P. Ltd.)7, reported in 198 I.T.R. Page 297, where various conflicting decisions of different High Court have been examined. We need not go into this question because in any event the notices for Assessment Years 1967-68 to 1973-74 are required to be set aside because they do not comply with the requirement of section 147(a) of the Income-tax Act, 1961. | 0[ds]10. Now, for the Assessment Years7, there was no error on the part of the assessee in claiming a deduction on account of Headquarters expenses. The same were correctly computed. So there was no omission or failure on the part of the assessee to disclose material facts. Under section 148(2) reasons are required to be recorded by the assessing authority forany assessment. These were produced before the learned Single Judge and are annexed to the affidavit in rejoinder of the appellants dated 28th August, 1989 in the writ petition. The assessing authority has referred to the fact that the assessee has admitted an excess charge of Headquarters expenses allocated to the appellants amounting to Rs. 61.19 lakhs for the accounting years 1968 to 1972. The Assessing Officer goes on to state that it has come to his knowledge that the Headquarters expenses claimed by the assessee are not based on actual service or benefits obtained by the assessee but are based on the ratio of Indian Branchs turnover to the world turnover of the branches and subsidiaries and in view thereof he has reopened assessments for the said period.11. In respect of Accounting Years 1968 to 1972 the learned Judge, in our view, has rightly come to the conclusion that the assessing authority was informed by the assessee about the basis and the method of allocation of headquarters expenses to theIt was aware of the method of allocating expenses at the time of making the assessment orders for these assessment years. The reasons show merely a change of opinion on the part of the assessing authority. In these circumstances, it cannot be held that there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for these years. We agree with the reasoning and conclusion arrived at by the learned Judge for quashing the notices served on the assessee under section 148 of the Income Tax Act, 1961 for these Assessment Years.12. In respect of Assessment Years74 there was admittedly an error on the part of the New York Headquarters of thein calculating the expenses allocated to the appellants in India. This mistake was discovered for the first time in 1974 when the appellants headquarters in New York were required to make detailed calculations to supply the information sought by the Reserve Bank of India for remittance of the expenses from India to New York. We have already referred to the nature of the error. The facts show that the error was inadvertant. When the new India Region Office opened at the end of 1965, the Headquarters erroneously allocated to the appellants, the expenses of India Region Branch instead of the Area Headquarters.13. In these circumstances, can it be said that there has been any failure or omission on the part of the assessee to disclose fully and truly all material facts In the first place, there is no doubt that the assessee had disclosed to the assessing authority the method of calculating the Headquarters expenses which were allocated to the appellant. Therefore, the assessing authorities were fully aware of the fact that the assessee was claiming Headquarters expenses on the basis of debit notes given to them by the Headquarters at New York and that these debit notes were based on the calculation of expenses to be allocated to the assessee on a pro rata basis as set out earlier. If the department wanted any further particulars regarding these calculations or any details in connection with the debit notes so furnished, it could have asked the assessee to furnish such details. In fact, the Department did ask the assessee for such particulars which were in fact furnished to the Department. It is an accepted position that neither the appellant/assessee nor the Department realised that the figures pertaining to India Region Office should not have been submitted and instead, figures pertaining to the Area Headquarters should have been submitted. There was, therefore, no omission or failure to disclose any materialcontention is raised for the first time in these proceedings. In the reasons which are set out for reopening the assessment for the years4, it is nowhere mentioned that the error in calculation was throughout known to the assessee and that information regarding wrong calculation of headquarter expenses allocated to the assessee was deliberately withheld by the assessee. Not only is this not recorded as a reason for reopening the assessment, but the documents which are before us in these proceedings all indicate to the contrary and we have no reason to disbelieve these documents. It is quite clear that by the letter dated 22nd November, 1974 the assessee had voluntarily disclosed to the Commissioner ofthe error in calculation of headquarters expenses. The excess debit has arisen because larger expenses of the region office rather than the area office have been taken into account. The assessee has voluntarily disclosed this error on learning of it, has calculated the excess income and paid tax on self assessment on this additional income. All this was done long prior to the notices being issued to the assessee under section 148 in respect of these Assessment Years. The contention of Dr. Balasubramniam in this connection is, therefore, without merit.18. It is also well settled that the reasons for reopening are required to be recorded by the assessing authority before issuing any notice under section 148 by virtue of the provisions of section 148(2) at the relevant time. Only the reasons so recorded can be looked at for sustaining or setting aside a notice issued under section 148. In the case of (Equitable Investment Co. (P.) Ltd. v.Officer)5, reported is 174 I.T.R. page 714, a Division Bench of the Calcutta High Court has held that where a notice issued under section 148 of theAct, 1961, after obtaining the sanction of the Commissioner ofis challenged, the only document to be looked into for determining the validity of the notice is the report on the basis of which the sanction of the Commissioner ofhas been obtained . TheDepartment cannot rely on any other material apart from the report. In the case before it, the Calcutta High Court refused to take into consideration the affidavit filed by theDepartment giving some additional reasons. In the present case, the reasons which are given by the Inspecting Assistant Commissioner forreopening the assessmentswhich are annexed to the affidavit in rejoinder of the appellants are to the effect that in respect of the assessment years74 there are errors in the principle of allocating headquarters expenses to India which have been deducted. The net effect is that there has been an excess charge of headquarters expenses allocated to India. Each of the notices sets out the relevant error for the accounting year. The reasons, therefore, do not indicate in any manner any deliberate omission or suppression of any fact or of this error, on the part of the assessee at the time of the original assessment. Nor do these reasons allege that the assessee was in possession of the facts which it has failed to prove. In these circumstances, the provisions of section 147(a) are notconclusions that there was a case for investigating the truth of the alleged transactions was not the same thing as saying that there were reasons for the issue of the notice. The Commissioner had mechanically accorded permission for issue of notice. In that case also the Commissioner had merely added the word `yes and fixed his signature. The Court came to the conclusion that the Commissioner had not applied his mind. We are not willing to read this case as laying down that where the Commissioner only adds a word `yes, he has not applied his mind. This will depend upon the facts and circumstances of each case. In the present case, however, looking to the reasons which have been recorded and which were before the Commissioner, there is nothing which would indicate that there was any omission on the part of the assessee to furnish any material facts. In fact the reasons themselves describe thisomission and failure as an inadvertant error in the principle of allocating expenses. In these circumstances, the sanction ought not to have been given by the Commissioner. But we need not press this aspect of the case in support of our conclusion in view of our finding that in any case, the notices under section 148 have been issued without the provisions of section 147(a) being attracted to the facts and circumstances of theneed not go into this question because in any event the notices for Assessment Years74 are required to be set aside because they do not comply with the requirement of section 147(a) of the2. We would like to point out that in the appealfiled by the Department in Appeal No. 106 of 1982 an unaffirmed affidavit in reply on behalf of the Department is annexed at pages 162 to 228 which affidavit is not on record and does not appear to have been filed in Court before the learned Single Judge or before us. Similarly there is an extract under the heading `Press Commission at page 139 which also appears to be an extra addendum inserted in the appealwhich was not before the learned Single Judge. These two documents are required to be ignored. The only affidavits which are filed by the Department are the affidavit of N.D. Bhatt dated 11th April, 1978 and the affidavit of S.K. Tyagi dated 12th September, 1980. | 0 | 5,597 | 1,709 | ### Instruction:
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22nd November, 1974 the assessee had voluntarily disclosed to the Commissioner of Income-tax the error in calculation of headquarters expenses. The excess debit has arisen because larger expenses of the region office rather than the area office have been taken into account. The assessee has voluntarily disclosed this error on learning of it, has calculated the excess income and paid tax on self assessment on this additional income. All this was done long prior to the notices being issued to the assessee under section 148 in respect of these Assessment Years. The contention of Dr. Balasubramniam in this connection is, therefore, without merit.18. It is also well settled that the reasons for reopening are required to be recorded by the assessing authority before issuing any notice under section 148 by virtue of the provisions of section 148(2) at the relevant time. Only the reasons so recorded can be looked at for sustaining or setting aside a notice issued under section 148. In the case of (Equitable Investment Co. (P.) Ltd. v. Income-tax Officer)5, reported is 174 I.T.R. page 714, a Division Bench of the Calcutta High Court has held that where a notice issued under section 148 of the Income-Tax Act, 1961, after obtaining the sanction of the Commissioner of Income-tax, is challenged, the only document to be looked into for determining the validity of the notice is the report on the basis of which the sanction of the Commissioner of Income-tax has been obtained . The Income-tax Department cannot rely on any other material apart from the report. In the case before it, the Calcutta High Court refused to take into consideration the affidavit filed by the Income-Tax Department giving some additional reasons. In the present case, the reasons which are given by the Inspecting Assistant Commissioner for re-opening the assessments which are annexed to the affidavit in rejoinder of the appellants are to the effect that in respect of the assessment years 1967-68 to 1973-74 there are errors in the principle of allocating headquarters expenses to India which have been deducted. The net effect is that there has been an excess charge of headquarters expenses allocated to India. Each of the notices sets out the relevant error for the accounting year. The reasons, therefore, do not indicate in any manner any deliberate omission or suppression of any fact or of this error, on the part of the assessee at the time of the original assessment. Nor do these reasons allege that the assessee was in possession of the facts which it has failed to prove. In these circumstances, the provisions of section 147(a) are not attracted.19. It is also contended by the appellants that the sanction which is granted by the Commissioner for Assesment Years 1967-68 to 1973-74 under section 151 of the Income-tax Act, 1961 is without any application of mind, because below the reasons so disclosed it is found that the sanctioning authority has merely said `yes. According to the appellants, looking to the reasons set out, it should have been clear to the sanctioning authority that there was no failure or omission on the part of the assessee to disclose any material fact. Had the sanctioning authority applied its mind, it would not have given such a sanction. The appellant/assessee relied on the decision in the case of (Chhugamal Rajpal v. S.P. Chaliha)6, reported in 79 I.T.R. page 603, where the Supreme Court on the facts before it held that the Income-tax Officer had not even come to a prima facie conclusion that the loan transactions to which he referred were not genuine transactions. His conclusions that there was a case for investigating the truth of the alleged transactions was not the same thing as saying that there were reasons for the issue of the notice. The Commissioner had mechanically accorded permission for issue of notice. In that case also the Commissioner had merely added the word `yes and fixed his signature. The Court came to the conclusion that the Commissioner had not applied his mind. We are not willing to read this case as laying down that where the Commissioner only adds a word `yes, he has not applied his mind. This will depend upon the facts and circumstances of each case. In the present case, however, looking to the reasons which have been recorded and which were before the Commissioner, there is nothing which would indicate that there was any omission on the part of the assessee to furnish any material facts. In fact the reasons themselves describe this so-called omission and failure as an inadvertant error in the principle of allocating expenses. In these circumstances, the sanction ought not to have been given by the Commissioner. But we need not press this aspect of the case in support of our conclusion in view of our finding that in any case, the notices under section 148 have been issued without the provisions of section 147(a) being attracted to the facts and circumstances of the case.20. The appellant/assessee has also objected to the large number of queries raised by the assessing authority in the course of the assessment which clearly indicate that the entire assessment on all aspects was being reopened for each of the assessment years. The appellant/assessee has submitted that when the reassessment is on a specific ground, the reassessment should ordinarily be confined to determine the income which has escaped assessment. It was submitted that the entire assessment could not have been reopened by the department in any event. The appellant/assessee has relied upon the decision of the Supreme Court in the case of (Commissioner of Income-tax v. Sun Engineering Works P. Ltd.)7, reported in 198 I.T.R. Page 297, where various conflicting decisions of different High Court have been examined. We need not go into this question because in any event the notices for Assessment Years 1967-68 to 1973-74 are required to be set aside because they do not comply with the requirement of section 147(a) of the Income-tax Act, 1961.
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or any details in connection with the debit notes so furnished, it could have asked the assessee to furnish such details. In fact, the Department did ask the assessee for such particulars which were in fact furnished to the Department. It is an accepted position that neither the appellant/assessee nor the Department realised that the figures pertaining to India Region Office should not have been submitted and instead, figures pertaining to the Area Headquarters should have been submitted. There was, therefore, no omission or failure to disclose any materialcontention is raised for the first time in these proceedings. In the reasons which are set out for reopening the assessment for the years4, it is nowhere mentioned that the error in calculation was throughout known to the assessee and that information regarding wrong calculation of headquarter expenses allocated to the assessee was deliberately withheld by the assessee. Not only is this not recorded as a reason for reopening the assessment, but the documents which are before us in these proceedings all indicate to the contrary and we have no reason to disbelieve these documents. It is quite clear that by the letter dated 22nd November, 1974 the assessee had voluntarily disclosed to the Commissioner ofthe error in calculation of headquarters expenses. The excess debit has arisen because larger expenses of the region office rather than the area office have been taken into account. The assessee has voluntarily disclosed this error on learning of it, has calculated the excess income and paid tax on self assessment on this additional income. All this was done long prior to the notices being issued to the assessee under section 148 in respect of these Assessment Years. The contention of Dr. Balasubramniam in this connection is, therefore, without merit.18. It is also well settled that the reasons for reopening are required to be recorded by the assessing authority before issuing any notice under section 148 by virtue of the provisions of section 148(2) at the relevant time. Only the reasons so recorded can be looked at for sustaining or setting aside a notice issued under section 148. In the case of (Equitable Investment Co. (P.) Ltd. v.Officer)5, reported is 174 I.T.R. page 714, a Division Bench of the Calcutta High Court has held that where a notice issued under section 148 of theAct, 1961, after obtaining the sanction of the Commissioner ofis challenged, the only document to be looked into for determining the validity of the notice is the report on the basis of which the sanction of the Commissioner ofhas been obtained . TheDepartment cannot rely on any other material apart from the report. In the case before it, the Calcutta High Court refused to take into consideration the affidavit filed by theDepartment giving some additional reasons. In the present case, the reasons which are given by the Inspecting Assistant Commissioner forreopening the assessmentswhich are annexed to the affidavit in rejoinder of the appellants are to the effect that in respect of the assessment years74 there are errors in the principle of allocating headquarters expenses to India which have been deducted. The net effect is that there has been an excess charge of headquarters expenses allocated to India. Each of the notices sets out the relevant error for the accounting year. The reasons, therefore, do not indicate in any manner any deliberate omission or suppression of any fact or of this error, on the part of the assessee at the time of the original assessment. Nor do these reasons allege that the assessee was in possession of the facts which it has failed to prove. In these circumstances, the provisions of section 147(a) are notconclusions that there was a case for investigating the truth of the alleged transactions was not the same thing as saying that there were reasons for the issue of the notice. The Commissioner had mechanically accorded permission for issue of notice. In that case also the Commissioner had merely added the word `yes and fixed his signature. The Court came to the conclusion that the Commissioner had not applied his mind. We are not willing to read this case as laying down that where the Commissioner only adds a word `yes, he has not applied his mind. This will depend upon the facts and circumstances of each case. In the present case, however, looking to the reasons which have been recorded and which were before the Commissioner, there is nothing which would indicate that there was any omission on the part of the assessee to furnish any material facts. In fact the reasons themselves describe thisomission and failure as an inadvertant error in the principle of allocating expenses. In these circumstances, the sanction ought not to have been given by the Commissioner. But we need not press this aspect of the case in support of our conclusion in view of our finding that in any case, the notices under section 148 have been issued without the provisions of section 147(a) being attracted to the facts and circumstances of theneed not go into this question because in any event the notices for Assessment Years74 are required to be set aside because they do not comply with the requirement of section 147(a) of the2. We would like to point out that in the appealfiled by the Department in Appeal No. 106 of 1982 an unaffirmed affidavit in reply on behalf of the Department is annexed at pages 162 to 228 which affidavit is not on record and does not appear to have been filed in Court before the learned Single Judge or before us. Similarly there is an extract under the heading `Press Commission at page 139 which also appears to be an extra addendum inserted in the appealwhich was not before the learned Single Judge. These two documents are required to be ignored. The only affidavits which are filed by the Department are the affidavit of N.D. Bhatt dated 11th April, 1978 and the affidavit of S.K. Tyagi dated 12th September, 1980.
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M/s Rajankumar and Brothers (Impex) Vs. Oriental Insurance Company Ltd | Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the Policy. 6.3 We may now turn to whether the Respondent waived the breach of warranty by its conduct or any representation. During the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.For instance, after the occurrence of loss, even if the insurer makes an express representation that it would affirm the contract and indemnify the loss, if the insurer can prove that such a representation was made without the knowledge that there was a breach of warranty on part of the insured, the liability of the insurer would stand discharged from the date on which the warranty was breached. Similarly, mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver, in the absence of an express representation to that effect. (Baris Soyer, Warranties in Marine Insurance (Cavendish, 2001) 206-213.) 6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case. 6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010. At the outset, the General Average Guarantee in Form B dated 3.8.2010 issued by the Respondent to the GAA was only an undertaking to pay the shipowners and the GAA on behalf of the Appellant for their contribution to the General Average, as and when such contribution was ascertained. This Guarantee was issued as per Clause 2 of the Marine Insurance Policy, under which the Respondent had agreed to cover all general average and salvage charges. Clause 2 reads as follows: 2. This insurance covers general average and salvage charges, adjusted or determined according to the contract of affreightment and/or the governing law and practice, incurred to avoid or in connection with the avoidance of loss from any cause, except those excluded in Clauses 4, 5, 6 and 7 or elsewhere in this insurance. (emphasis supplied) At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy. 6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant. 7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case. 8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication. | 1[ds]5. With respect to the first issue, it is not disputed that both the Cover Note and the Marine Insurance Policy stated that the ICC would be one of the warranties/terms of insurance. Additionally, Clause 6 of the Cover Note, as mentioned supra, prescribed that the subject vessel needed to conform to the current ICC, in the absence of which, the insurance cover would be subject to payment of an additional premiumAs is evident from the above, the ICC 01/01/2001 imposes two requirements to ensure that the vessel complies with a certain minimum standard of seaworthiness. The first is a classification requirement which requires that the vessel should be classed with a Classification Society which is a Member/Associate Member of the International Association of Classification Societies (IACS) or, in the case of vessels engaged exclusively in coastal trading, a National Flag Society. The second is an age limitation in respect of the insured vesselThus, it can be inferred from the above that an underwriter/insurer would usually trust the quality of, and be prepared to issue a reasonable premium for, a vessel classed with an IACS member society. On the other hand, the insurer may demand a higher premium, or deny insurance cover altogether, for a voyage in respect of a vessel classed by a non-IACS member society. Hence, the ICC prescribes classification with a member of the IACS as the baseline for ensuring that the policy involves less risk for the underwriterTherefore, Sub Clause 1 of the ICC 01/01/2001 provides that cargo interests are obligated to promptly notify insurance underwriters if the cargo is being carried by a vessel which is not classed as prescribed in the ICC, and Clause 5 makes it clear that failure to provide such information will lead to exclusion of the insurance coverWe are in agreement with the said contention of the Appellant, inasmuch as the 1978 version of the ICC was replaced by the ICC 13/4/92, the ICC 1/8/97, and the ICC 01/01/2001. As mentioned supra, the ICC 01/01/2001 is the most recent version of the ICC, and the one which is relevant for the purpose of the present caseHowever, the most recent version of the ICC, i.e., ICC 01/01/2001, parts of which we have quoted earlier, does not help the Appellants case inasmuch as it is stricter in its import. We find it useful to undertake a comparative analysis of the older versions of the ICC and the ICC 01/01/2001 in this regardThe aforementioned held covered provision acted as a saving clause to cater for situations where an assured discovered that the vessel in which their cargo was being carried fell outside the classification and/or age requirement in the ICC. In such a situation the assured cargo owner could still avail of the insurance cover subject to negotiating payment of an additional premium with the insurerHence, it appears that in order to avoid any confusion, the ICC 01/01/2001 has been drafted to expressly incorporate the aforesaid two requirements. Under the ICC 01/01/2001, the assured must immediately inform the insurer/underwriter if they discover that the vessel carrying the cargo does not meet the classification requirementAdditionally, if the vessel is such that a prudent underwriter would not be prepared to underwrite the risk at a reasonable premium, the assured is not entitled to the insurance cover.6 These requirements are important because, as discussed earlier, the classification of the vessel is a significant factor for influencing the underwriters decision-making as regards whether an insurance cover should be issued for the marine voyage or notIt is true that the Courts reasoning in Everbright was significantly predicated upon the fact that the respondent insurer had issued an open-cover insurance in which the insurer had only issued a cover-note based on the details of the cargo and the port of origin and destination of the voyage, and the relevant particulars of the vessel had not been provided to the insurer in advance. This is important to note because in the present case, though the Respondent initially issued the Cover Note dated 14.5.2010 (supra) without knowing the particulars of the vessel, it subsequently issued the Marine Insurance Policy dated 2.7.2010 after having received the Appellants communication that the vessel was classed as I.R.S5.6 Thus, it can be seen from the above decisions that where a vessel is not classed with a recognized classification society in terms of the ICC, any loss incurred by the cargo-owner will be excluded from the scope of the insurance cover. Further, the cargo owner is required to immediately notify the underwriters and negotiate an additional premium if the vessel is not classed in accordance with the ICC5.7 In the instant case, it is apparent that neither was the subject vessel in compliance with the ICC clause, nor had the Appellant given prompt notification to the Respondent about such non-compliance. The Appellant, in its letter dated 26.5.2010 (supra) had informed the Respondent that the vessel is of I.R.S. class. However, the full form of I.R.S. was not specified. As mentioned supra, the Appellant has contended that the NCDRC wrongly interpreted the term I.R.S. to mean Indian Register of Shipping and that the subject vessel was actually registered and classified with the International Register of Shipping. However, our perusal of the official website of the International Register of Shipping shows that its official acronym is INTLREG. (See International Register of Shipping, About, https://intlreg.org/about/.) Whereas I.R.S. is the official acronym of the Indian Register of Shipping. (See Indian Register of Shipping, About IRClass, https://www.irclass.org/aboutirclass/. ) Hence the Appellants contention that I.R.S. refers to the International Register of Shipping is prima facie sustainableThe Appellant had also averred in its complaint before the NCDRC that the Overseas Seller had produced a certificate dated 11.6.2010, certifying that the subject vessel was registered with an approved Classification Society as per the Institute Classification Clause. Further, that as per the said certificate, the class of the subject vessel was equivalent to Lloyds 100A1, and the subject vessel was seaworthy and not more than 30 years old. However, no such evidence of the vessels classification was ever provided to the Respondent. It is true that the Appellant has, during the course of hearing this appeal, placed the certificate dated 11.6.2010 before this Court. However, a perusal of the certificate shows that is only a self-certification wherein the vessel owners have claimed that the subject vessel is classed with an approved classification society as per the ICC clause. It cannot be taken as conclusive evidence that the vessel was actually classed with an IACS member societyEven if we were to accept the Appellants contention that the vessel is classed with the International Register of Shipping (hereinafter INTLREG for convenience), this does not help its case inasmuch the INTLREG is not one of the 12 accredited Member Societies of the IACS. Rather, it is the I.R.S. which is an IACS member. It has never been the case of the Appellant that the subject vessel was classed by the Indian Register of Shipping. It is also not the Appellants case that the subject vessel was classed with a National Flag Society. Hence we find that the Appellant had committed breach of the classification requirement contained in Clause 1 of the ICC5.8 The letter dated 26.5.2010 sent by the Appellant to the Respondent, in respect of the ships particulars, cannot be said to constitute prompt notification as the particulars of the subject vessels classification were not clearly specified therein. The Respondent may have, in good faith, assumed that I.R.S. meant that the subject vessel was classed with the Indian Register of Shipping, and may have consequently inferred that the subject vessel fell within the scope of the ICC clauseIt was only pursuant to the Appellants request for release of separate salvage security that the Respondents claim settling agents, M/s. W.K. Webster & Co., London by e-mail dated 9.8.2010 informed the Respondent that as per their investigation, the subject vessel was classed with Lloyds Register of Shipping only until 10.10.2007, after which the classification was withdrawn. Hence it was only from this e-mail that the Respondents came to know that the shipment may fall outside the scope of the insurance cover, as per the terms of the ICC. Consequently, we find that the prompt notification requirement has not been satisfied, and there is no ground for the application of the held covered clause5.9 Further, as per the observations of the Singapore Court of Appeal in Everbright Commercial Enterprises (supra), we consider it highly unlikely on the facts of this case that any prudent underwriter would have agreed to cover the risk involved in a such a high value shipment under the Marine Cargo Clause (which covers almost all risks of loss or damage), even though the Appellant had no documentary evidence on record to prove the classification of the subject vessel. However, neither of the parties has led evidence on whether the Respondent would have agreed to insure the policy for a reasonable premium had the correct particulars of the subject vessel been disclosed. Hence we do not consider it appropriate to record any findings on the same. In any case, such question does not arise inasmuch as the Appellant did not provide prompt notification in the first place. Hence, as provided under Clause 5 of the ICC, the insurers liability is automatically, we conclude that the Appellant had committed breach of the warranty contained in the Marine Insurance Policy requiring the subject vessel to be classed in accordance with the ICC, and such breach of warranty discharged the liability of the insurerA warranty imposes certain obligations on the insured, and Section 35(3) makes it amply clear that a warranty needs to be complied with, regardless of whether or not its non-compliance materially affects the risk involved in carrying the shipment. As a corollary, when a warranty is not complied with, i.e., there is a breach of warranty, the insurer is discharged from liability from the date of such breach, by virtue of Section 35(3). At the outset, therefore, it is important to note that the scheme of the 1963 Act is clear inasmuch as the automatic consequence of a breach of warranty is discharge of the insurers liability. Such discharge of liability does not require any express conduct or representation from the insurer6.1 In the instant case, though the Respondent initially issued the Cover Note dated 14.5.2010 without knowing the particulars of the vessel in which the Appellants cargo was to be carried, it subsequently issued the Marine Insurance Policy after the particulars of the subject vessel, including the purported classification of I.R.S., were received. However, while the importance of the ICC is undoubtedly more significant in cases of open-cover insurances where the specific details of the vessel carrying the cargo are not known to the insurer, as held in Nam Kwong Medicines (supra), a facultative insurance policy in which the details of the subject vessel are specified, need not be mutually exclusive with the ICCIt is not the Appellants case that the Respondent had chosen to issue the Marine Insurance Policy despite being informed by the Appellant that the vessel was non-classed. Rather the Appellant had represented that the subject vessel was I.R.S. classed. That being the case, as noted in Everbright Commercial Enterprises and Kam Hing Trading (supra), it was not the Respondents burden to have investigated the Appellants claim and informed the Appellant that the subject vessel was non-classed. Hence, at the outset it is important to note that the mere formal issuance of the Marine Insurance Policy by the Respondent does not indicate acceptance/waiver of the vessels classification or lack thereofHowever, it cannot be said that the ICC was an implied warranty within the meaning of Clause 5.2. It was stated on the face of the Marine Cargo Cover dated 14.5.2010 and the Marine Insurance Policy that the ICC is one of the warranties/terms of insuranceIn any case, the Appellants stand is that the subject vessel was classed with the INTLREG (which it has mistakenly referred to as I.R.S.). As the Singapore Court of Appeal has observed in Everbright Commercial Enterprises (supra) and as discussed supra, the very purpose of adopting the ICC is to ensure that the vessel chosen by the insured meets certain minimum standards of seaworthiness, by virtue of being classed with one of the well-established member societies of the IACS. The Appellant, having known that the subject vessel was classed with the INTLREG, which neither was nor is a member of the IACS, was privy to the fact that the subject vessel was not compliant with the minimum standard of seaworthiness as laid out in the Marine Insurance Policy. Clause 5.2 only waives breaches of implied warranties of seaworthiness where the assured was not privy to the unseaworthiness of the vessel. Hence, the Appellant would not be saved by Clause 5.2 of the Policy, and it cannot be said that the Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the PolicyDuring the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication. | 1 | 10,620 | 3,168 | ### Instruction:
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Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the Policy. 6.3 We may now turn to whether the Respondent waived the breach of warranty by its conduct or any representation. During the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.For instance, after the occurrence of loss, even if the insurer makes an express representation that it would affirm the contract and indemnify the loss, if the insurer can prove that such a representation was made without the knowledge that there was a breach of warranty on part of the insured, the liability of the insurer would stand discharged from the date on which the warranty was breached. Similarly, mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver, in the absence of an express representation to that effect. (Baris Soyer, Warranties in Marine Insurance (Cavendish, 2001) 206-213.) 6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case. 6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010. At the outset, the General Average Guarantee in Form B dated 3.8.2010 issued by the Respondent to the GAA was only an undertaking to pay the shipowners and the GAA on behalf of the Appellant for their contribution to the General Average, as and when such contribution was ascertained. This Guarantee was issued as per Clause 2 of the Marine Insurance Policy, under which the Respondent had agreed to cover all general average and salvage charges. Clause 2 reads as follows: 2. This insurance covers general average and salvage charges, adjusted or determined according to the contract of affreightment and/or the governing law and practice, incurred to avoid or in connection with the avoidance of loss from any cause, except those excluded in Clauses 4, 5, 6 and 7 or elsewhere in this insurance. (emphasis supplied) At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy. 6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant. 7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case. 8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication.
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Trading (supra), it was not the Respondents burden to have investigated the Appellants claim and informed the Appellant that the subject vessel was non-classed. Hence, at the outset it is important to note that the mere formal issuance of the Marine Insurance Policy by the Respondent does not indicate acceptance/waiver of the vessels classification or lack thereofHowever, it cannot be said that the ICC was an implied warranty within the meaning of Clause 5.2. It was stated on the face of the Marine Cargo Cover dated 14.5.2010 and the Marine Insurance Policy that the ICC is one of the warranties/terms of insuranceIn any case, the Appellants stand is that the subject vessel was classed with the INTLREG (which it has mistakenly referred to as I.R.S.). As the Singapore Court of Appeal has observed in Everbright Commercial Enterprises (supra) and as discussed supra, the very purpose of adopting the ICC is to ensure that the vessel chosen by the insured meets certain minimum standards of seaworthiness, by virtue of being classed with one of the well-established member societies of the IACS. The Appellant, having known that the subject vessel was classed with the INTLREG, which neither was nor is a member of the IACS, was privy to the fact that the subject vessel was not compliant with the minimum standard of seaworthiness as laid out in the Marine Insurance Policy. Clause 5.2 only waives breaches of implied warranties of seaworthiness where the assured was not privy to the unseaworthiness of the vessel. Hence, the Appellant would not be saved by Clause 5.2 of the Policy, and it cannot be said that the Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the PolicyDuring the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication.
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FRANKLIN TEMPLETON TRUSTEE SERVICES PRIVATE LIMITED AND ANOTHER Vs. AMRUTA GARG AND OTHERS ETC | to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors. It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes. 38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance. These contentions are: (i) Mr. T.S. Krishnamurthys appointment as the Observer by SEBI vide its letter dated 18th December, 2020 was made public belatedly on 26th December, 2020; (ii) Notice for e-meeting dated 6th December, 2020 issued under the name of Mr. Alok Sethi, Director of the Trustees, was not digitally signed by him. However, Mr. Alok Sethi had digitally signed the notice subsequently on 28th December, 2020; (iii) M/s. J. Sagar and Associates should not have been appointed as the Scrutiniser to oversee the conduct of the e-voting and the Observer Mr. T.S. Krishnamurthy should have acted as the Scrutinser; (iv) KFin Technologies was appointed for providing electronic platform for e-voting vide meeting of the Board of Directors of the trustees dated 29thApril, 2020 and thereafter the agreement dated 8th June, 2020 was entered into, but this agreement was digitally signed on 30th June, 2020. Similarly, M/s. J. Sagar and Associates, the law firm, was appointed as the Scrutiniser by letter of engagement dated 13th May, 2020 and the law firm had conveyed its willingness to act as the Scrutiniser. However, the resolution by the Board of Directors of the trustees was approved by circulation on 21st May, 2020. Further addendum to their letter of engagement was issued on 22nd December, 2020; and (v) Notices for e-voting did not specify with clarity whether e-voting was possible on any technology platform, viz. laptop/ desktop or smartphone, etc., though such facility was available. 39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail. 40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions. | 1[ds]Pertinently, after receipt of the forensic audit report, SEBI has issued show cause notice which is pending adjudication. Common people invest in mutual funds driven by factors such as simplicity in purchase and redemption of units, flexibility of holding and tenure, and liquidity by conversion into money. In the light of this, immediate directions are required as embargo prohibiting redemption of the units, effected by Regulation 40 from the date of publication of notice under Regulation 39(3)(b) on 23rd April 2020, for over ten months. Thereby the unitholders have suffered privation and harassment. This, in same manner, also undermines public sentiments and confidence vital for investments in mutual funds.Hence, in view of larger public interest, presentlywe are only deciding the limited aspect of unitholders consent to winding up [assuming that Regulation 18(15)(c) would apply even where the trustees form an opinion that a scheme should be wound up under Regulation, and are persuaded to direct winding up of the six schemes to ensure disbursement of funds and liquidation of assets/securities.Lastly and importantly, during the course of hearing on 2nd February, 2021, counsels for the objecting unitholders have agreed to disbursal of Rs.9,122 crores amongst the unitholders, which, it has been directed would be in proportion to the unitholders respective interest in the assets of the scheme, as suggested by SEBI. It is obvious that this disbursal to unitholders is possible only when we accept that the six schemes should be wound up.7. Interpreting the term consent with reference to clause (c) of sub- regulation (15) to Regulation 18, the judgment under challenge holds:221. Obviously, there can be a consent of the unit- holders to a proposed of winding up of a Scheme only if the majority of the unit-holders give consent to do so. Sub-clause (c) of clause (15) of Regulation 18 is silent on the nature of majority. Obviously, it is not a specific majority like three-fourth majority. Wherever three-fourth majority of the unit-holders was intended, the Mutual Funds Regulations say so. For example, sub-clause (b) of clause (15) of Regulation 18 and sub-clause (b) of clause (2) of Regulation 39. Therefore, it has to be a simple majority. For this purpose, we must make a reference to a decision of a Full Bench of the Allahabad High Court in the case of Wahid Ullah Khan v. District Magistrate, Nanital. In paragraph 32, the Allahabad High Court held thus:32. The word majority speaks, of greater number out of the total number which cannot be a fixed number. In fact, the starting point of majority is more than half, but any number more than half still continues to be majority. Majority cannot be said only confining to more than half. Majority of three-fourths of the total number, two-thirds of the total number would all come within the sphere of the word majority. A person is said to have won by a majority of fifty thousand votes or thirty thousand votes. All speak about the extent of majority. A majority may start from a number which is more than half and would continue till the balance of the number excluding one number. In the matter of votes if a resolution is carried either in favour or against by all it is said to be unanimous. Majority is used in contradiction to minority. Thus, there must exist a minority vote. So, even where one vote is cast in favour or against resolution the balance of the total number of votes cast would all be a number of majority vote.222. The meaning assigned by the Allahabad High court to the word majority appears to be most correct meaning. The Blacks Law Dictionary provides that a majority means a number that is more than half of a total. Therefore, consent, as contemplated by sub- clause (c) of clause (15) of Regulation 18 will have to be by a simple majority of the unit-holders of a particular Scheme which is decided to be wound up.While we partly agree with the aforesaid observations, we would like to emend the meaning given to the expression the consent of the unitholders for the purpose of clause (c) to sub- regulation (15) of Regulation 18.8. However, we begin by rejecting the argument raised by some of the objecting unitholders that consent would be binding only on those who have consented to winding up of the mutual fund schemes and cannot be imposed on others. The word consent, in the context of the clause, clearly refers to consent of the majority of the unitholders, and not consent given by individual unitholders who alone would be bound by their consent, that is, it excludes unitholders who are not agreeable. To accept the second or contra view, as pleaded by some of the objecting unitholders, would be to negate the very object and purpose of clause (c) to sub-regulation (15) of Regulation 18. In fact, the submission, if accepted, will make the Mutual Fund schemes and the winding up provisions in the Mutual Fund Regulations unworkable as there would be two different classes of unitholders – one bound by the consent, and others who are not bound by consent. Consequently, the scheme would not wind up. The intent behind the provision is to bind even those who do not consent.The word/expression consent in sub-regulation (15) to Regulation 18 refers to affirmative consent to winding up by the majority of the unitholders. Conversely, consent is denied when majority of the unitholders do not approve the proposal to wind up the scheme.12. Clause (c) to sub-regulation (15) of Regulation 18 per se does not prescribe any quorum or specify the criterion for computing majority or ratio of unitholders required for valid consent for winding up. Clause (b) of Regulation 39(2), on the other hand, specifies that seventy-five per cent of the unitholders of a scheme can pass a resolution that the scheme be wound up. Similarly, Regulation 41(1) requires the trustees to call a meeting to approve, by simple majority of the unitholders present and voting, a resolution for authorising the trustees or any other person to take steps for winding up of the scheme. Section 48 of the Companies Act, 2013 states that where share capital of a company is divided into different classes of shares, the rights attached to the shares of any class may be varied with the consent in writing of the shareholders of not less than three-fourths of the issued shares of that class. Sub-section (3) to Section 55 of the Companies Act, 2013 in case of failure to redeem or pay dividend refers to consent of holders of three-fourths in value of the preference shares. Section 103 of the Companies Act, 2013 prescribes minimum quorum for shareholder meetings.14. The concept of absurdity in the context of interpretation of statutes is construed to include any result which is unworkable, impracticable, illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief (See Bennion on Statutory Interpretation, 5th Edition, at 969.). Logic referred to herein is not formal or syllogistic logic, but acceptance that enacted law would not set a standard which is palpably unjust, unfair, unreasonable or does not make any sense.(Ibid at 986.) When an interpretation is beset with practical difficulties, the courts have not shied from turning sides to accept an interpretation that offers a pragmatic solution that will serve the needs of society( Ibid at 971, quoting Griffiths LJ.). Therefore, when there is choice between two interpretations, we would avoid a construction which would reduce the legislation to futility, and should rather accept the construction based on the view that draftsmen would legislate only for the purpose of bringing about an effective result. We must strive as far as possible to give meaningful life to enactment or rule and avoid cadaveric consequences(See Principles of Statutory Interpretation by Justice G.P. Singh, 14th Edition, at 50.).15. We would neither hesitate in stating the obvious, that modern regulatory enactments bear heavily on commercial matters and, therefore, must be precisely and clearly legislated as to avoid inconvenience, friction and confusion, which may, in addition, have adverse economic consequences(See Bennion on Statutory Interpretation, 5th Edition, at 980.). The legislator in the present case must, therefore, reflect and take remedial steps to bring about clarity and certainty in the Mutual Fund Regulations.16. Reading prescription of a quorum as majority of the unitholders or consent as implying consent by the majority of all unitholders in Regulation 18(15)(c) of the Mutual Fund Regulations will not only lead to an absurdity but also an impossibility given the fact that mutual funds have thousands or lakhs of unitholders. Many unitholders due to lack of expertise, commercial understanding, relatively small holding etc. may not like to participate. Consent of majority of all unitholders of the scheme with further prescription that fifty percent of all unitholders shall constitute a quorum is clearly a practical impossibility and therefore would be a futile and foreclosed exercise.In the case of unitholders, the number is fluctuating and ever changing and, therefore, indefinite. Numbers of unitholders can increase, decrease and change with purchase or redemption. Therefore, in the context of clause (c) of Regulation 18(15), we would not, in the absence of any express stipulation, prescribe a minimum quorum and read the requirement of consent by the majority of the unitholders as consent by majority of all the unitholders. On the other hand, it would mean majority of unitholders who exercise their right and vote in support or to reject the proposal to wind up the mutual fund scheme. The unitholders who did not exercise their choice/option cannot be counted as either negative or positive votes as either denying or giving consent to the proposal for winding up.18. Investment in share market, though beneficial and attractive, requires expertise in portfolio construction, stock selection and market timing. In view of attendant risks, diversification of portfolio is preferred but this consequentially requires a larger investment. Mutual funds managed by professional fund managers with advantages of pooling of funds and operational efficiency are the preferred mode of investment for ordinary and common persons. It would be wrong to expect that many amongst these unitholders would have definitive opinion required and necessary voting in a poll on winding up of a mutual fund scheme. Such unitholders, for varied reasons, like lack of understanding and expertise, small holding etc., would prefer to abstain, leaving it to others to decide. Such abstention or refusal to express opinion cannot be construed as either accepting or rejecting the proposals. Keeping in view the object and purpose of the Regulation with the language used therein, we would not accept a construction which would lead to commercial chaos and deadlock. Therefore, silence on the part of absentee unitholders can neither be taken as an acceptance nor rejection of the proposal. Regulation 18(15)(c), upon application in ground reality, must not be interpreted in a manner to frustrate the very law and objective/purpose for which it was enacted. We would rather accept a reasonable and pragmatic construction which furthers the legislative purpose and objective. The underlying thrust behind Regulation 18(15)(c) is to inform the unitholders of the reason and cause for the winding up of the scheme and to give them an opportunity to accept and give their consent or reject the proposal. It is not to frustrate and make winding up an impossibility.Way back in 1943, Sutherland in Statutes and Statutory Construction, Volume 2, Third Edition at page no. 523, in Note 5109, had stated:Where a statue has received a contemporaneous and practical interpretation and the statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it ordinarily receives, and is regarded presumptively the correct interpretation of the law. The rule is based upon the theory that the legislature is acquainted with the contemporaneous interpretation of a statue, especially, when made by an administrative body or executive officers charged with the duty of administering or enforcing the law, and therefore impliedly adopts the interpretation upon re- enactment.With some modifications, the principle can be applied in the present case. Practical interpretation should be accorded greater weight than it ordinarily receives, and can be regarded as presumptively correct interpretation as the draftsmen legislate to bring about a functional and working result.19. We would not read into Regulation 18(15)(c) a need to have affirmative consent of majority of all or entire pool of unitholders. The words all or entire are not incorporated and found in the said Regulation. Thus, consent of the unitholders for the purpose of clause (c) to sub-regulation (15) of Regulation 18 would mean simple majority of the unitholders present and voting.29. The objectors to the e-voting results are sixteen in number and, as per details, they hold 20,02,114.041 units in the six schemes of value of Rs. 8,69,28,507.62. In percentage terms, the share of objectors in the total units is merely 0.024% and their share in the total AUM is 0.033%. (Chennai Financial Markets and Accountability, one of the parties and an objector, does not hold any unit in the six schemes. Trustees/AMC have questioned the locus and the role of CFMA. We are not presently examining the said aspect which is left open to be examined and decided, if required, later.)Though we have not been provided with scheme-wise break-up of the votes which should have been given, it does not matter in view of the overwhelming consent for winding up of the schemes.The rejected votes represent 1,997 unitholders holding approximately 68.10 crore units valued at Rs. 2,464 crores. Further, an overwhelming majority of the rejected votes – Rs. 2,420 crores by value, 98.6% by units and 97.5% by number of unitholders – were in favour of the scheme. Accordingly, if these rejected votes are taken into consideration, the total votes being polled in proportionate terms would increase from approximately 54% to approximately 62%.31. We do not think we are required to go into the said aspect in great detail. As already held above, the unitholders were given a chance and option to vote and about 38% of the unitholders in numerical terms and 54% in value terms had exercised their right to give or reject consent to the proposal for winding up. In the absence or need for minimum quorum, which is not provided or stipulated in the Regulations nor mandated under law, the e-voting result cannot be rejected on the ground that 38% of the unitholders in numerical terms and 54% in value terms, even if we do not account for the rejected votes, had participated. This cannot be a ground to reject and ignore the affirmative result consenting to the proposal for winding up of the six mutual fund schemes.The submission being that KFin Technologies is an associate/sister of M/s. Karvy Stock Broking Limited. This company, M/s. Karvy Stock Broking Limited, indicted by an adverse order dated 24th November, 2020 under Sections 11(1), 11(4) and 11B of the SEBI Act read with Regulation 35 of SEBI (Intermediary) Regulations, 2008, is barred from accepting new clients on grounds of investor fraud, falsification of records of investors/clients and misuse of client funds.33. This argument does not impress us and cannot be a ground to reject the results. KFin Technologies, it has been pointed out, has been providing e-voting platform services to listed public limited companies ever since the Ministry of Corporate Affairs mandated them to secure approval of the resolutions by the shareholders through electronic voting. The e-voting platform of KFin Technologies is certified by the Ministry of Corporate Affairs approved certification agency, viz. STQC Website Quality Certification Services. KFin Technologies has conducted more than 4,500 e-voting events since 2013. To reject the voting results on this rather specious submission would cast doubts with serious repercussions on e-voting results of several reputed companies. The objectors are unable to point out even a single instance where KFin Technologies has been indicted. In the present case, the e-voting exercise was also supervised by a team of technical experts, including Mr. M. Krishna and Mr. Ch E. Sai Prasad, Assistant Directors, CFSL, Hyderabad.35. The trustees/AMC and KFin Technologies have disputed paragraph 5 of the report stating that database monitoring logs were provided to the forensic experts. However, we need not go into the said aspect, for, in our opinion, paragraph 4 of the report is being misread and misunderstood by the objectors. It is correct that for some of the votes, the IP address 10.41.3.252 as captured was that of the Load Balancing Server of KFin Technologies. However, the report also records that KFin Technologies has explained that due to technical or implementation issues it was able to capture public IP address of e- votes after 1231 hours on 26th December, 2020. Paragraph 4 states that details of the customers, scheme-wise, where the same IP address has been logged for multiple e-votes, had been provided to the forensic experts. Clearly, the details of each customer /unitholder where one or same IP address was used for casting multiple votes was furnished. It is not the case of the objectors that any of the unitholders/voters have complained of impersonation or misuse of their identity. KFin Technologies has explained that in total 1,17,416 votes were registered in the system. The source IP address was captured in 88,293 cases. In 29,123 cases, votes with Load Balancing Server IP was captured in the IIS logs for which end-user IP report in the firewall between 26th December 2020 (09:00 a.m. till 12:31 p.m.) was available. They have, by way of data flow diagram, elucidated and explained the e-voting platform. The e-voting platform on valid login would issue a one-time password which would be sent via e-mail or SMS to the unitholder. This one-time password was randomly and automatically generated without human intervention. The unitholder was required to enter the one-time password and thereupon cast their vote. After the vote was cast, acknowledgement/ confirmation e-mail/SMS was sent to the registered voters ID/mobile number. Further, the data stored in the database was one-way encrypted. E-voting window was not open and the application would not allow the user or the unitholder to enter any details. Importantly, the Observers report mentions that before the e-voting, a thorough examination of the system was done by the experts. The report (Annexure-11) records that to check, 0.5% of the votes were selected randomly and on verification, e-logs were matched with the master database. Further on examination and analysis of the event logs of the two web servers no abnormal events were witnessed, indicating normal functionality of the system. We are satisfied with the explanation given by the trustees/AMC and KFin Technologies with reference to the observations in the report of the forensic experts from CFSL.37. At the first blush there does appear to be merit in the contention, albeit the notice for e-voting and meeting of the unitholders has to be read in entirety. We must also account for the history leading to the e-voting process. It is but obvious that the trustees had already taken a decision to wind up the six schemes. Regulation 39(3) requires the trustees to disclose the circumstances leading to winding up of the schemes. The trustees accordingly, in the notice for e-voting and meeting of the unitholders, had furnished their explanation and reason for winding up of the six schemes37. At the first blush there does appear to be merit in the contention, albeit the notice for e-voting and meeting of the unitholders has to be read in entirety. We must also account for the history leading to the e-voting process. It is but obvious that the trustees had already taken a decision to wind up the six schemes. Regulation 39(3) requires the trustees to disclose the circumstances leading to winding up of the schemes. The trustees accordingly, in the notice for e-voting and meeting of the unitholders, had furnished their explanation and reason for winding up of the six schemesand had also stated as under:The Trustee is providing the following explanation to help Unitholders assess the pros and cons of the voting options available to them. There can be no guarantee that the outcomes will be exactly as the Trustee expects. We urge Unitholders to carefully consider the following and seek appropriate advice and guidance in making this important decision.The controversy relating to winding up of the six mutual fund schemes has been in the public domain for a long time. The court would also take judicial notice that the unitholders were aware and conscious of the litigation against the winding up, including the procedure. At the same time, many in the general public may not be fully aware of the commercial considerations and niceties relating to mutual funds and debt securities market. This is the precise reason why most people do not make direct investment in the securities market and prefer mutual funds. Further, the trustees had earlier vide document No. 16 (enclosed at pages 1253 to 1255 in the appeal arising out of Special Leave Petition (C) No. 14288 of 2020) communicated the reasons for their decision to wind up the six schemes. The relevant portions this notice read as under:The unprecedented lockdown of the Indian economy in the wake of Covid-19 has impacted livelihoods and businesses across the country. Despite several measures by the Reserve Bank of India (RBI), the liquidity in certain segments of the corporate bond markets has fallen-off dramatically and has remained low for an extended period.In this scenario, mutual funds are facing unprecedented liquidity challenges due to a variety of factors – rising redemption pressures due to heightened risk aversion, mark to market losses following a spike in yields and lower trading volumes in the bond markets. These factors have together caused a significant and worsening liquidity crunch for open-end mutual fund schemes investing in corporate credits across the credit rating spectrum.Important Announcement: In this situation, we find that the ability to liquidate assets at a reasonable price to fund redemptions for the schemes identified below is under severe stress and it is no longer possible for certain schemes of Franklin Templeton to generate adequate liquidity to fund daily redemptions. Accordingly, we wish to inform you, that the Trustees of Franklin Templeton Mutual Fund in India have, after careful analysis and review of the recommendations submitted by Franklin Templeton AMC, and in close consultation with the investment team, voluntarily decided to wind up its suite of six yield-oriented fixed income funds, post cut-off time from April 23, 2020 (refer to Annexure I- Notice to Investors) as they are of the considered opinion that an event has occurred, which requires these schemes to be wound up. This decision has been taken in light of the severe market dislocation illiquidity caused by the Coid-19 pandemic, and in order to protect value for investors via managed sale of the portfolio. The list of schemes being wound up is as follows:1. Franklin India Ultra Short Bond Fund (FIUBF)2. Franklin India Short Term Income Fund (FISTIP)3. Franklin India Credit Risk Fund (FICRF)4. Franklin India Low Duration Fund (FILDF)5. Franklin India Dynamic Accrual Fund (FIDA)6. Franklin India Income Opportunities Fund (FIIOF)Factors leading to Winding-Up: The impact schemes of Franklin Templeton were able to meet their redemption obligationacross all market conditions and even during the initial phase of the Covid-19 pandemic lockdown despite redemption pressures and increased market illiquidity. However, the extension of the lockdown has heightened redemption volumes and reduced inflows to unsustainable levels. The schemes even resorted to borrowings within permissible limits in line with market practice to fund redemptions during this time but given the situation, we felt that it would not be prudent to leverage the schemes further. While the respective valuations of these schemes have been marked promptly and conservatively thus far, continuous redemption pressures in the backdrop of a severe dislocation in the corporate bond markets would place great strain on our ability to ensure equitable treatment of all investors.Further, given the current unprecedented situation even the committed borrowing lines maintained by the funds are inadequate to meet the demand for sustained narrowing across the schemes.We explored the possibility of suspending redemptions until market conditions stabilize without winding up the schemes. However, conditions for such a suspension under the current regulatory framework, such as a maximum suspension period of 10 working days (in 90 days) and the requirement to honour redemptions up to INR 2 lakh per day per investor, rendered this approach unviable to meet the severe sustained impact of the current crisis (refer Annexure III-FAQ for options considered besides winding up).The Trustees were hence left with no option except to initiate the winding up of the schemes with a view to protect the interests of unitholders, Winding up the schemes was determined to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors.It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes.38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance.39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail.40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.41. As per the consolidated affidavit filed by the trustees and AMC, securities equivalent to more than Rs.17,000 crores are yet to be realised. This is a substantial amount. The trustees and SEBI were not at ad idem and have given different time frames within which they felt the securities can be liquidated. However, both the trustees and SEBI, have stated in unison that the liquidation/realisation has to be proceeded with caution, as an attempt to offload the securities in haste can result in losses which would be detrimental and cause reduction in realisable value.We would not like to enter into this debate or give any specific directions but would observe that M/s. SBI Funds Management Pvt. Ltd. shall follow the best effort principle so as to ensure expeditious and timely payment to the unitholders and assure the best possible liquidation value of the assets/ securities to the unitholders. However, we have no hesitation in directing that distribution/disbursement of funds to the unitholders can be made in tranches without waiting for liquidation of all the securities/assets.42. In view of the aforesaid discussion, we hold that for the purpose of clause (c) to Regulation 18(15), consent of the unitholders would mean consent by majority of the unitholders who have participated in the poll, and not consent of majority of all the unitholders of the scheme. In view of the findings and reasons stated above, we reject the objections to poll results and hold that the unitholders of the six schemes have given their consent by majority to windup the six schemes. | 1 | 10,754 | 5,782 | ### Instruction:
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to be the best way to ensure a fair and equitable distribution of monies to unitholders while minimizing erosion in value for investors. It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes. 38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance. These contentions are: (i) Mr. T.S. Krishnamurthys appointment as the Observer by SEBI vide its letter dated 18th December, 2020 was made public belatedly on 26th December, 2020; (ii) Notice for e-meeting dated 6th December, 2020 issued under the name of Mr. Alok Sethi, Director of the Trustees, was not digitally signed by him. However, Mr. Alok Sethi had digitally signed the notice subsequently on 28th December, 2020; (iii) M/s. J. Sagar and Associates should not have been appointed as the Scrutiniser to oversee the conduct of the e-voting and the Observer Mr. T.S. Krishnamurthy should have acted as the Scrutinser; (iv) KFin Technologies was appointed for providing electronic platform for e-voting vide meeting of the Board of Directors of the trustees dated 29thApril, 2020 and thereafter the agreement dated 8th June, 2020 was entered into, but this agreement was digitally signed on 30th June, 2020. Similarly, M/s. J. Sagar and Associates, the law firm, was appointed as the Scrutiniser by letter of engagement dated 13th May, 2020 and the law firm had conveyed its willingness to act as the Scrutiniser. However, the resolution by the Board of Directors of the trustees was approved by circulation on 21st May, 2020. Further addendum to their letter of engagement was issued on 22nd December, 2020; and (v) Notices for e-voting did not specify with clarity whether e-voting was possible on any technology platform, viz. laptop/ desktop or smartphone, etc., though such facility was available. 39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail. 40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.
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monies to unitholders while minimizing erosion in value for investors.It is also the contention of the trustees that they were required to justify and explain the reasons for winding up of the six schemes and hence the notice was worded in this manner. The notice had also informed the investors that there would be suspension of subscription and redemption post the cut-off time from 23rd April, 2020. All Systematic Investment Plans, Systematic Transfer Plans and Systematic Withdrawal Plans into and from the above- mentioned funds stood cancelled post the cut off time from 23rd April, 2020. The notice had also furnished information and clarification regarding distribution of monies from the Fund Assets, inter alia stating that following the decision to wind up the six schemes, the trustees would proceed for orderly realization and liquidation of the underlying assets with the objective of preserving value for unitholders. Their endeavour would be to liquidate the portfolio holdings at the earliest opportunity, to enable an equitable exit for all investors in the unprecedented circumstances. We do not think, in the facts of the present case, the notice for e-voting and the contents would justify annulling the consent given by the unitholders for the winding up of the six schemes.38. We will now refer to and deal with some of the other objections to the consent/e-voting results which, in our opinion, are merely assertions, or at best minor irregularities, which do not have any substance.39. These contentions are mere nitpicks and would hardly justify rejection of the consent to winding up which has been expressed by more than 95% of the unitholders who had voted. Mr. T.S. Krishnamurthy was appointed as the Observer by SEBI in view of the directions given by this Court to ensure fairness and transparency. He was not to conduct the meeting or the process, but only to oversee and give his report on the entire process. Being an independent observer, his observations and comments vide the report would help resolve any debate, doubt or questions. The observer is the eyes and ears, which the Court could rely. Mr. T.S. Krishnamurthy in his report has mentioned that many calls, messages and e-mails were received by him expressing difficulty in voting, non-receipt of passwords and difficulty in reaching the helplines. He had, therefore, conveyed these messages to the trustees and KFin Technologies. Based on the response, the number of helplines were increased. Missed calls were returned and answered. The Observers report vide Annexure-10 refers to the complaints/calls made to Mr. T.S. Krishnamurthy and also records that these were redressed. No unitholder has expressed or stated that they could not vote or their queries were not answered. Absence or lack of digital signatures on the notice is a technical and not a substantive objection. Moreover, the trustees have explained that in view of the objection raised by the Technical Assistance Team, Mr. Alok Sethi had digitally signed a copy of the notice for the purpose of the record. This digitally signed notice was made available to the Technical Assistance Team. M/s. J. Sagar and Associates and KFin Technologies had been earlier appointed by the trustees possibly for compliance of clause (c) to Regulation 18(15) of the Regulations. Agreements earlier in point of time with KFin Technologies and M/s. J. Sagar and Associates would not, in any manner, be an irregularity. Further, Mr. T.S. Krishnamurthy was not to himself count the votes as this exercise had to be undertaken essentially by the Scrutiniser, M/s. J. Sagar and Associates. To conduct the e-voting, for the purpose of consent, the trustees had engaged services of KFin Technologies and M/s. J. Sagar and Associates. M/s J. Sagar and Associates being a law firm, it is obvious, are not experts in information technology. Necessarily, they would rely on the data and details made available by KFin Technologies. We have already dealt with the question of integrity and authenticity of the e-voting data and that it was checked by two technical experts who are Assistant Directors at CFSL, Hyderabad. The comments of the forensic experts have been examined and considered in detail.40. In the present case, we do not think the procedure prescribed by Regulation 4117 is required to be followed as the trustees themselves have stated that the process of winding up, which would include liquidation of the securities and distribution/payment to the unitholders, should be undertaken by a third party. The objectors had also made similar submissions.41. As per the consolidated affidavit filed by the trustees and AMC, securities equivalent to more than Rs.17,000 crores are yet to be realised. This is a substantial amount. The trustees and SEBI were not at ad idem and have given different time frames within which they felt the securities can be liquidated. However, both the trustees and SEBI, have stated in unison that the liquidation/realisation has to be proceeded with caution, as an attempt to offload the securities in haste can result in losses which would be detrimental and cause reduction in realisable value.We would not like to enter into this debate or give any specific directions but would observe that M/s. SBI Funds Management Pvt. Ltd. shall follow the best effort principle so as to ensure expeditious and timely payment to the unitholders and assure the best possible liquidation value of the assets/ securities to the unitholders. However, we have no hesitation in directing that distribution/disbursement of funds to the unitholders can be made in tranches without waiting for liquidation of all the securities/assets.42. In view of the aforesaid discussion, we hold that for the purpose of clause (c) to Regulation 18(15), consent of the unitholders would mean consent by majority of the unitholders who have participated in the poll, and not consent of majority of all the unitholders of the scheme. In view of the findings and reasons stated above, we reject the objections to poll results and hold that the unitholders of the six schemes have given their consent by majority to windup the six schemes.
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DR. SRIDIP CHATTERJEE Vs. DR. GOPA CHAKRABORTY | different nomenclature. The Diploma in Yoga Education is nothing but Diploma in Yoga, therefore, the appellant satisfies the eligibility requirement. Though, the Selection Committee has not specifically recorded that the qualification possessed by the appellant is in terms of the conditions of advertisement but the members of the Selection Committee were experts in the subject and once the appellant was appointed, it necessarily means that they were satisfied with the qualification possessed by the appellant as one satisfying the eligibility conditions advertised. It is further contended that in terms of the directions issued by the learned Single Bench, the University has constituted an Equivalence Committee and has found that the Diploma certificate produced by the appellant satisfies the eligibility conditions, therefore, even if there were some procedural irregularities in not recording the eligibility of the appellant in the initial minutes of the Selection Committee, such irregularities stand cured when the Equivalence Committee considered the appellant eligible for appointment. It is also contended that the suitability of the candidate in terms of eligibility conditions advertised is for the experts to consider and once experts have found that the appellant possesses the required educational qualification, the Court while exercising power of judicial review, could not take a different view that the qualification possessed by the appellant does not meet the qualification prescribed in the advertisement. The reliance is placed upon judgment of this Court in B.C. Mylarappa v. Dr. R. Venkatasubbaiah & Ors.(2008) 14 SCC 306 , wherein this Court held as under: 26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction. 13. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa & Anr. (2008) 9 SCC 284 , this Court held as under: 29. It may be mentioned that on a clarification sought from UGC whether a candidate who possesses a Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa, UGC wrote a letter dated 5-3-1992 to the Registrar, M.D. University, Rohtak stating that the subjects of Political Science and Public Administration are interchangeable and interrelated, and a candidate who possesses Masters degree in Public Administration is eligible as Lecturer in Political Science and vice versa. Thus, this is the view of UGC, which is an expert in academic matters, and the Court should not sit in appeal over this opinion and take a contrary view. 14. On the other hand, learned counsel for the respondents contended that it is not permissible for the Selection Committee to change the selection criteria midway. Since the eligibility condition as per the advertisement was Diploma in Yoga or Yoga Therapy, therefore, Diploma in Yoga Education could not be treated as a qualification in terms of the conditions of the advertisement. Reliance is placed upon judgment of this Court in Prakash Chand Meena & Ors. v. State of Rajasthan & Ors. (2015) 8 SCC 484 wherein it was held that the Court could not go into the question whether a degree is equivalent or superior to the qualification prescribed in the advertisement. 15. We have heard learned counsel for the parties and find that the judgment of the Division Bench of the High Court is not sustainable in law. 16. The condition of the advertisement was Diploma in Yoga or Yoga Therapy. The appellant possesses Diploma in Yoga Education. The Court in exercise of power of judicial review could not come to a conclusion that the Diploma possessed by the appellant does not satisfy the eligibility conditions advertised. The Court has only looked to the bare nomenclature of Diploma possessed by the appellant. No doubt, in the proceedings of the Selection Committee, it is not recorded that the Diploma possessed by the appellant is equivalent to the educational qualifications advertised but the Selection Committee was comprised of experts in the subjects and, therefore, even if it was not specifically mentioned, the decision could not have been interfered with only because the Court finds that Diploma in Yoga Education is not the same as Diploma in Yoga or Yoga Therapy 17. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. Post Graduate Diploma in Yoga or Yoga Therapy. It is only Diploma in Yoga Education which has been considered as equivalent to Diploma in Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the Diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the Experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant. 18. Learned counsel for the respondents has referred to a curriculum of Kaivalyadhama to argue that the Post Graduate Diploma in Yoga Education and Post Graduate Diploma in Yoga/Yoga Therapy are different. We do not find that such curriculum can be relied upon by the respondents to hold that the appellant is not eligible when the committee of experts have found the appellant eligible. | 1[ds]15. We have heard learned counsel for the parties and find that the judgment of the Division Bench of the High Court is not sustainable in law.16. The condition of the advertisement was Diploma in Yoga or Yoga Therapy. The appellant possesses Diploma in Yoga Education. The Court in exercise of power of judicial review could not come to a conclusion that the Diploma possessed by the appellant does not satisfy the eligibility conditions advertised. The Court has only looked to the bare nomenclature of Diploma possessed by the appellant. No doubt, in the proceedings of the Selection Committee, it is not recorded that the Diploma possessed by the appellant is equivalent to the educational qualifications advertised but the Selection Committee was comprised of experts in the subjects and, therefore, even if it was not specifically mentioned, the decision could not have been interfered with only because the Court finds that Diploma in Yoga Education is not the same as Diploma in Yoga or Yoga Therapy17. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. Post Graduate Diploma in Yoga or Yoga Therapy. It is only Diploma in Yoga Education which has been considered as equivalent to Diploma in Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the Diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the Experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant.18. Learned counsel for the respondents has referred to a curriculum of Kaivalyadhama to argue that the Post Graduate Diploma in Yoga Education and Post Graduate Diploma in Yoga/Yoga Therapy are different. We do not find that such curriculum can be relied upon by the respondents to hold that the appellant is not eligible when the committee of experts have found the appellant eligible. | 1 | 2,354 | 409 | ### Instruction:
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different nomenclature. The Diploma in Yoga Education is nothing but Diploma in Yoga, therefore, the appellant satisfies the eligibility requirement. Though, the Selection Committee has not specifically recorded that the qualification possessed by the appellant is in terms of the conditions of advertisement but the members of the Selection Committee were experts in the subject and once the appellant was appointed, it necessarily means that they were satisfied with the qualification possessed by the appellant as one satisfying the eligibility conditions advertised. It is further contended that in terms of the directions issued by the learned Single Bench, the University has constituted an Equivalence Committee and has found that the Diploma certificate produced by the appellant satisfies the eligibility conditions, therefore, even if there were some procedural irregularities in not recording the eligibility of the appellant in the initial minutes of the Selection Committee, such irregularities stand cured when the Equivalence Committee considered the appellant eligible for appointment. It is also contended that the suitability of the candidate in terms of eligibility conditions advertised is for the experts to consider and once experts have found that the appellant possesses the required educational qualification, the Court while exercising power of judicial review, could not take a different view that the qualification possessed by the appellant does not meet the qualification prescribed in the advertisement. The reliance is placed upon judgment of this Court in B.C. Mylarappa v. Dr. R. Venkatasubbaiah & Ors.(2008) 14 SCC 306 , wherein this Court held as under: 26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction. 13. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa & Anr. (2008) 9 SCC 284 , this Court held as under: 29. It may be mentioned that on a clarification sought from UGC whether a candidate who possesses a Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa, UGC wrote a letter dated 5-3-1992 to the Registrar, M.D. University, Rohtak stating that the subjects of Political Science and Public Administration are interchangeable and interrelated, and a candidate who possesses Masters degree in Public Administration is eligible as Lecturer in Political Science and vice versa. Thus, this is the view of UGC, which is an expert in academic matters, and the Court should not sit in appeal over this opinion and take a contrary view. 14. On the other hand, learned counsel for the respondents contended that it is not permissible for the Selection Committee to change the selection criteria midway. Since the eligibility condition as per the advertisement was Diploma in Yoga or Yoga Therapy, therefore, Diploma in Yoga Education could not be treated as a qualification in terms of the conditions of the advertisement. Reliance is placed upon judgment of this Court in Prakash Chand Meena & Ors. v. State of Rajasthan & Ors. (2015) 8 SCC 484 wherein it was held that the Court could not go into the question whether a degree is equivalent or superior to the qualification prescribed in the advertisement. 15. We have heard learned counsel for the parties and find that the judgment of the Division Bench of the High Court is not sustainable in law. 16. The condition of the advertisement was Diploma in Yoga or Yoga Therapy. The appellant possesses Diploma in Yoga Education. The Court in exercise of power of judicial review could not come to a conclusion that the Diploma possessed by the appellant does not satisfy the eligibility conditions advertised. The Court has only looked to the bare nomenclature of Diploma possessed by the appellant. No doubt, in the proceedings of the Selection Committee, it is not recorded that the Diploma possessed by the appellant is equivalent to the educational qualifications advertised but the Selection Committee was comprised of experts in the subjects and, therefore, even if it was not specifically mentioned, the decision could not have been interfered with only because the Court finds that Diploma in Yoga Education is not the same as Diploma in Yoga or Yoga Therapy 17. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. Post Graduate Diploma in Yoga or Yoga Therapy. It is only Diploma in Yoga Education which has been considered as equivalent to Diploma in Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the Diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the Experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant. 18. Learned counsel for the respondents has referred to a curriculum of Kaivalyadhama to argue that the Post Graduate Diploma in Yoga Education and Post Graduate Diploma in Yoga/Yoga Therapy are different. We do not find that such curriculum can be relied upon by the respondents to hold that the appellant is not eligible when the committee of experts have found the appellant eligible.
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15. We have heard learned counsel for the parties and find that the judgment of the Division Bench of the High Court is not sustainable in law.16. The condition of the advertisement was Diploma in Yoga or Yoga Therapy. The appellant possesses Diploma in Yoga Education. The Court in exercise of power of judicial review could not come to a conclusion that the Diploma possessed by the appellant does not satisfy the eligibility conditions advertised. The Court has only looked to the bare nomenclature of Diploma possessed by the appellant. No doubt, in the proceedings of the Selection Committee, it is not recorded that the Diploma possessed by the appellant is equivalent to the educational qualifications advertised but the Selection Committee was comprised of experts in the subjects and, therefore, even if it was not specifically mentioned, the decision could not have been interfered with only because the Court finds that Diploma in Yoga Education is not the same as Diploma in Yoga or Yoga Therapy17. On the other hand, the judgments referred to by the learned counsel for the respondents are in respect of change of eligibility criteria midway of the selection process. Such is not the fact in the present case. The qualification prescribed in the advertisement remains the same i.e. Post Graduate Diploma in Yoga or Yoga Therapy. It is only Diploma in Yoga Education which has been considered as equivalent to Diploma in Yoga or Yoga Therapy. Not only the Selection Committee has found the appellant suitable but even the Equivalence Committee, constituted in terms of the directions of the learned Single Bench, also found the Diploma of the appellant as the one satisfying the requirement of the advertisement. Therefore, once the Experts have taken a decision that the appellant meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment of the appellant.18. Learned counsel for the respondents has referred to a curriculum of Kaivalyadhama to argue that the Post Graduate Diploma in Yoga Education and Post Graduate Diploma in Yoga/Yoga Therapy are different. We do not find that such curriculum can be relied upon by the respondents to hold that the appellant is not eligible when the committee of experts have found the appellant eligible.
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Maharaja Sir Pateshwari Prasad Singh Vs. State of Uttar Pradesh | contended on behalf of the respondent State that the word "grant" in the notification meant grant in cash only and for this purpose reference was made to various rules framed by the State Government for the management of charitable dispensaries and hospitals. The her the contention of the respondent or the view expressed by High Court is correct. All that we have here is inspection of the hospitals and dispensaries by the Government medical officers. We have nothing to show for what purpose such inspection was held. The inspection may have rendered no service at all to the hospitals and dispensaries for the purpose for which they exist. It may have been made only for Governments statistical purpose or for seeing that the health regulations prevailing in the state were being observed. We find it impossible to infer from the word "inspection" any idea of a service rendered to the patients in the hospitals or for the charitable object for which the hospitals had been maintained. It has not, therefore, been shown that the inspection by the Governments doctors was granted within the notification. 18. Learned Counsel drew out attention to certain rule made by the court of wards in connection with the hospitals and dispensaries while the Balrampur Estate was in its charge. He said that those rules were being followed in the years with which we are concerned though the estate had then been released from the charge of the court of wards. This point, however, was not raised before the assessing authority nor the High Court and no reference to these rules in made in the assessment orders or the appellant judgment and order or by the High Court. These rules, however, do not advance the matter further. They provide that various appointments in the dispensaries had to be made by the Government civil surgeons. Such appointments do not, in our view, amount to rendering services for the charitable purpose for which the hospitals and dispensaries had been established. 19. Learned Counsel then drew our attention to another part of these rules and a part of the affidavit filed by his clients agent in connection with the application for reference to the question to the High Court. From these it appears that the dispensaries in the district were under the control of the Assistant Surgeon who was posted at the Memorial Hospital, Balrampur. It may be that this Assistant Surgeon was a Government employee but it does not appear what service he has rendering in the hospitals. In any case, this ground had been nowhere relied upon by the appellant as constituting a grant by the State Government within the meaning of the notification under rule 17. We are, therefore, unable to go into this question. We repeat however that it strikes us as extremely strange that the State Government should have taken a legalistic view of the matter and we think that munificence of the appellant deserved more consideration from it. 20. We come now to the remaining two questions which were marked 10 and 11 and were framed as follows :"10. Whether the scholarships paid to students were donations to an institution or fund within the meaning of the rule 17 ? 11. Whether the amount paid to an institution earmarked for scholarships can be treated as donation to the institution within the meaning of rule 17 or can the institution on that ground be treated as an institution aided by the Government within the meaning of rule 17 ?" 21. Question No. 10 was reframed by the High Court and no objection was taken to it. As reframed the question reads as follows :"10. (1) Whether the scholarships paid to students through an institution recognised by the State Government or a local authority were donations within the meaning of rule 17 ? (2) Whether the scholarships paid to students directly would amount to donations to an institution or to a fund within the scope of rule 17 ?"22. It is necessary to refer to another part of the notification under rule 17 to which we have earlier referred. The notification besides approving for the purpose of the rule certain hospitals and clinics as we have earlier stated, also approved of "educational institutions recognised or aided by the State Government or a local authority". The point of the present question really arises under this part of the notification. It is not disputed that the institutions in contemplation were institutions recognised or aided by Government. We feel no doubt that when moneys are paid to such an institution to be distributed as scholarships to its students, this is a donation to the institution for the institution utilises it for its own purpose, namely, helping its students which it may otherwise have done with its own funds. The first part of question No. 10 must, therefore, be answered in the affirmative as the High Court has done. For the same reason the second part of the question No. 10 has also to be answered in The affirmative. As in the first case, here also the institution had the benefit of the payment though indirectly through its students. What we have said disposes of question No. II also. The first part of this question is really the same .as question No. 10(1) and the answer to it must be in the affirmative. The second or the alternative part of this question does not arise because it is admitted in this court that all the institutions to which the donations with which these appeals are concerned were made, are recognised by the State Government. 23. It remains to deal with a point raised by learned counsel for the respondent State and that refers to question No. 4. That question was, whether rule 17 was ultra vires section 8 of the Act ? That question was answered against the respondent but as the respondent did not file any appeal, it is impossible for this court to go into the question. | 1[ds]It does not seem to us that either of these reasons isg the second reason first, it may be stated that it is conceded on behalf of the respondent State that if the words "agriculturalin condition (b) do not includen only persons having an income between Rs. 3,000 and Rs. 3,214 per annum would be benefited. The respondent however says that there is no reason to think that the number of such persons was small not that it was not intended to confine the benefit to themalone. We think that the contentions of the respondent State are of substance. We are unable to conclude from the fact that persons owning estates yielding income between Rs. 3,000 and Rs. 3,214 only would be benefited, that the expression "agriculturalmust be understood to includeso as to enlarge the scope of the benefit. The legislature may have intended to confer the benefit only on persons with a comparatively smaller income. There is nothing to show that it did not doComing now to the first reason, it seems to us that the context requires that the definition of "agriculturalin section 2(2) should not be imported into condition (b). Condition (b) is a condition to which the rates mentioned in Part I of the Schedule are made expressly subject. Those rates are only of agricultural incometax. The obvious intention is that the amount of the agriculturalonly, that is to say, excluding the amount ofthat can be imposed, calculated at the rates specified in Part I of the Schedule, is not in any case to exceed the limit mentioned in condition (b). If it were not so, the words "Those rates are subject to the condition" preceding the two conditions would be insensible. This interpretation brings condition (b) in line with the expression "agriculturalused in condition (a) where plainly it only refers toThat condition says that no agricultural incomeThe question is not very clear but it appears that the object was really to interpret the rule itself. The point at issue will be clearer after we have set out the relevant portion of the rule.It is not in dispute that the appellant spend large sums in charities. He maintained a number of hospitals and dispensaries and donated magnificently by way of scholarships to encourage deserving students. It appears that in the year 1355F his charities to the hospitals and dispensaries amounted to Rs. 1,9 and in the shape of scholarship, Rs. 68,We cannot help regretting that the matter could not be settled out of court and had to be litigated upon involving expense of moneys which could have been utilised for more usefulare not persuaded that this is the correct view to take. Normally the word "and" should be given its ordinary meaning and should be understood in a conjunctive sense. So understood the rule would require not only that the payment should be to an institution or fund established for a charitable purpose but that institution or fund must also be approved by the State Government for the purpose of the rule, that is, as an institution donation to which would entitled the donor to exemption from agriculturalWe think that the intention was that there must be approval of the institution or fund. The reason for that is clear. If such approval was not incumbent, then exemptions would have to be granted also in the case of an institution which was on the face of it for a charitable purpose but where the funds were not utilised for charities. It is not unusual for the legislature to provide that donations to such charities only will be given exemption where the Government has by its approval indicatedIt was also said that if an approval was a condition precedent to the grant of an exemption, then it would be within the power of the Government to prefer one charitable institution to another. We do not think that this is an argument of any force. There is nothing, to prevent the legislature from giving the Government the power to prefer and such power had to be given if protection against the misuse of exemption is necessary, which we think it is. Further, it does not seem to us possible that the rule required approval of the Government only in cases where it was doubtful whether the institution or a fund had a charitable purpose. Either it had such a purpose or it had not. If any dispute arose, the matter had to be decided by the proper authorities, judicial or departmental. It was wholly unnecessary to provide for approval by the Government only in cases where it was doubtful whether the purpose of the institution was charitable or not. We, therefore, think that the answer to the question is that inWe have earlier mentioned that the appellant spent large sums on the maintenance and expenses of the hospitals and several dispensaries. These institutions had no doubt been established for charitable purpose as defined in the Explanation in rule 17. But as we have held that in order to earn exemption under rule 17 the institutions have also to be approved by the Government, the appellant is required to show that the hospitals and dispensaries maintained by the notification mentioned in the question.Under this notification a hospital or a clinic which is in receipt of a grant by the State Government would be an institution for a charitable purpose approved by the Government for the purpose of rule 17.In order, therefore, to earn the exemption the appellant has to establish that the hospitals and dispensaries were in receipt of a grant by the State Government or local body. It is however admitted that neither the State Government nor any local body ever made any cash grants to the hospitals and dispensaries. It appeared however that the State Government deputed doctors employed by it who inspected these hospitals and dispensaries, and paid their salaries and travellingher the contention of the respondent or the view expressed by High Court is correct. All that we have here is inspection of the hospitals and dispensaries by the Government medical officers. We have nothing to show for what purpose such inspection was held. The inspection may have rendered no service at all to the hospitals and dispensaries for the purpose for which they exist. It may have been made only for Governments statistical purpose or for seeing that the health regulations prevailing in the state were being observed. We find it impossible to infer from the word "inspection" any idea of a service rendered to the patients in the hospitals or for the charitable object for which the hospitals had been maintained. It has not, therefore, been shown that the inspection by the Governments doctors was granted within thedrew out attention to certain rule made by the court of wards in connection with the hospitals and dispensaries while the Balrampur Estate was in its charge. He said that those rules were being followed in the years with which we are concerned though the estate had then been released from the charge of the court of wards. This point, however, was not raised before the assessing authority nor the High Court and no reference to these rules in made in the assessment orders or the appellant judgment and order or by the High Court. These rules, however, do not advance the matter further. They provide that various appointments in the dispensaries had to be made by the Government civil surgeons. Such appointments do not, in our view, amount to rendering services for the charitable purpose for which the hospitals and dispensaries had beenthese it appears that the dispensaries in the district were under the control of the Assistant Surgeon who was posted at the Memorial Hospital, Balrampur. It may be that this Assistant Surgeon was a Government employee but it does not appear what service he has rendering in the hospitals. In any case, this ground had been nowhere relied upon by the appellant as constituting a grant by the State Government within the meaning of the notification under rule 17. We are, therefore, unable to go into this question. We repeat however that it strikes us as extremely strange that the State Government should have taken a legalistic view of the matter and we think that munificence of the appellant deserved more consideration from it.It is necessary to refer to another part of the notification under rule 17 to which we have earlier referred. The notification besides approving for the purpose of the rule certain hospitals and clinics as we have earlier stated, also approved of "educational institutions recognised or aided by the State Government or a local authority". The point of the present question really arises under this part of the notification. It is not disputed that the institutions in contemplation were institutions recognised or aided by Government. We feel no doubt that when moneys are paid to such an institution to be distributed as scholarships to its students, this is a donation to the institution for the institution utilises it for its own purpose, namely, helping its students which it may otherwise have done with its own funds. The first part of question No. 10 must, therefore, be answered in the affirmative as the High Court has done. For the same reason the second part of the question No. 10 has also to be answered inremains to deal with a point raised by learned counsel for the respondent State and that refers to question No. 4. That question was, whether rule 17 was ultra vires section 8 of the Act ? That question was answered against the respondent but as the respondent did not file any appeal, it is impossible for this court to go into the question. | 1 | 3,841 | 1,764 | ### Instruction:
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contended on behalf of the respondent State that the word "grant" in the notification meant grant in cash only and for this purpose reference was made to various rules framed by the State Government for the management of charitable dispensaries and hospitals. The her the contention of the respondent or the view expressed by High Court is correct. All that we have here is inspection of the hospitals and dispensaries by the Government medical officers. We have nothing to show for what purpose such inspection was held. The inspection may have rendered no service at all to the hospitals and dispensaries for the purpose for which they exist. It may have been made only for Governments statistical purpose or for seeing that the health regulations prevailing in the state were being observed. We find it impossible to infer from the word "inspection" any idea of a service rendered to the patients in the hospitals or for the charitable object for which the hospitals had been maintained. It has not, therefore, been shown that the inspection by the Governments doctors was granted within the notification. 18. Learned Counsel drew out attention to certain rule made by the court of wards in connection with the hospitals and dispensaries while the Balrampur Estate was in its charge. He said that those rules were being followed in the years with which we are concerned though the estate had then been released from the charge of the court of wards. This point, however, was not raised before the assessing authority nor the High Court and no reference to these rules in made in the assessment orders or the appellant judgment and order or by the High Court. These rules, however, do not advance the matter further. They provide that various appointments in the dispensaries had to be made by the Government civil surgeons. Such appointments do not, in our view, amount to rendering services for the charitable purpose for which the hospitals and dispensaries had been established. 19. Learned Counsel then drew our attention to another part of these rules and a part of the affidavit filed by his clients agent in connection with the application for reference to the question to the High Court. From these it appears that the dispensaries in the district were under the control of the Assistant Surgeon who was posted at the Memorial Hospital, Balrampur. It may be that this Assistant Surgeon was a Government employee but it does not appear what service he has rendering in the hospitals. In any case, this ground had been nowhere relied upon by the appellant as constituting a grant by the State Government within the meaning of the notification under rule 17. We are, therefore, unable to go into this question. We repeat however that it strikes us as extremely strange that the State Government should have taken a legalistic view of the matter and we think that munificence of the appellant deserved more consideration from it. 20. We come now to the remaining two questions which were marked 10 and 11 and were framed as follows :"10. Whether the scholarships paid to students were donations to an institution or fund within the meaning of the rule 17 ? 11. Whether the amount paid to an institution earmarked for scholarships can be treated as donation to the institution within the meaning of rule 17 or can the institution on that ground be treated as an institution aided by the Government within the meaning of rule 17 ?" 21. Question No. 10 was reframed by the High Court and no objection was taken to it. As reframed the question reads as follows :"10. (1) Whether the scholarships paid to students through an institution recognised by the State Government or a local authority were donations within the meaning of rule 17 ? (2) Whether the scholarships paid to students directly would amount to donations to an institution or to a fund within the scope of rule 17 ?"22. It is necessary to refer to another part of the notification under rule 17 to which we have earlier referred. The notification besides approving for the purpose of the rule certain hospitals and clinics as we have earlier stated, also approved of "educational institutions recognised or aided by the State Government or a local authority". The point of the present question really arises under this part of the notification. It is not disputed that the institutions in contemplation were institutions recognised or aided by Government. We feel no doubt that when moneys are paid to such an institution to be distributed as scholarships to its students, this is a donation to the institution for the institution utilises it for its own purpose, namely, helping its students which it may otherwise have done with its own funds. The first part of question No. 10 must, therefore, be answered in the affirmative as the High Court has done. For the same reason the second part of the question No. 10 has also to be answered in The affirmative. As in the first case, here also the institution had the benefit of the payment though indirectly through its students. What we have said disposes of question No. II also. The first part of this question is really the same .as question No. 10(1) and the answer to it must be in the affirmative. The second or the alternative part of this question does not arise because it is admitted in this court that all the institutions to which the donations with which these appeals are concerned were made, are recognised by the State Government. 23. It remains to deal with a point raised by learned counsel for the respondent State and that refers to question No. 4. That question was, whether rule 17 was ultra vires section 8 of the Act ? That question was answered against the respondent but as the respondent did not file any appeal, it is impossible for this court to go into the question.
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an exemption, then it would be within the power of the Government to prefer one charitable institution to another. We do not think that this is an argument of any force. There is nothing, to prevent the legislature from giving the Government the power to prefer and such power had to be given if protection against the misuse of exemption is necessary, which we think it is. Further, it does not seem to us possible that the rule required approval of the Government only in cases where it was doubtful whether the institution or a fund had a charitable purpose. Either it had such a purpose or it had not. If any dispute arose, the matter had to be decided by the proper authorities, judicial or departmental. It was wholly unnecessary to provide for approval by the Government only in cases where it was doubtful whether the purpose of the institution was charitable or not. We, therefore, think that the answer to the question is that inWe have earlier mentioned that the appellant spent large sums on the maintenance and expenses of the hospitals and several dispensaries. These institutions had no doubt been established for charitable purpose as defined in the Explanation in rule 17. But as we have held that in order to earn exemption under rule 17 the institutions have also to be approved by the Government, the appellant is required to show that the hospitals and dispensaries maintained by the notification mentioned in the question.Under this notification a hospital or a clinic which is in receipt of a grant by the State Government would be an institution for a charitable purpose approved by the Government for the purpose of rule 17.In order, therefore, to earn the exemption the appellant has to establish that the hospitals and dispensaries were in receipt of a grant by the State Government or local body. It is however admitted that neither the State Government nor any local body ever made any cash grants to the hospitals and dispensaries. It appeared however that the State Government deputed doctors employed by it who inspected these hospitals and dispensaries, and paid their salaries and travellingher the contention of the respondent or the view expressed by High Court is correct. All that we have here is inspection of the hospitals and dispensaries by the Government medical officers. We have nothing to show for what purpose such inspection was held. The inspection may have rendered no service at all to the hospitals and dispensaries for the purpose for which they exist. It may have been made only for Governments statistical purpose or for seeing that the health regulations prevailing in the state were being observed. We find it impossible to infer from the word "inspection" any idea of a service rendered to the patients in the hospitals or for the charitable object for which the hospitals had been maintained. It has not, therefore, been shown that the inspection by the Governments doctors was granted within thedrew out attention to certain rule made by the court of wards in connection with the hospitals and dispensaries while the Balrampur Estate was in its charge. He said that those rules were being followed in the years with which we are concerned though the estate had then been released from the charge of the court of wards. This point, however, was not raised before the assessing authority nor the High Court and no reference to these rules in made in the assessment orders or the appellant judgment and order or by the High Court. These rules, however, do not advance the matter further. They provide that various appointments in the dispensaries had to be made by the Government civil surgeons. Such appointments do not, in our view, amount to rendering services for the charitable purpose for which the hospitals and dispensaries had beenthese it appears that the dispensaries in the district were under the control of the Assistant Surgeon who was posted at the Memorial Hospital, Balrampur. It may be that this Assistant Surgeon was a Government employee but it does not appear what service he has rendering in the hospitals. In any case, this ground had been nowhere relied upon by the appellant as constituting a grant by the State Government within the meaning of the notification under rule 17. We are, therefore, unable to go into this question. We repeat however that it strikes us as extremely strange that the State Government should have taken a legalistic view of the matter and we think that munificence of the appellant deserved more consideration from it.It is necessary to refer to another part of the notification under rule 17 to which we have earlier referred. The notification besides approving for the purpose of the rule certain hospitals and clinics as we have earlier stated, also approved of "educational institutions recognised or aided by the State Government or a local authority". The point of the present question really arises under this part of the notification. It is not disputed that the institutions in contemplation were institutions recognised or aided by Government. We feel no doubt that when moneys are paid to such an institution to be distributed as scholarships to its students, this is a donation to the institution for the institution utilises it for its own purpose, namely, helping its students which it may otherwise have done with its own funds. The first part of question No. 10 must, therefore, be answered in the affirmative as the High Court has done. For the same reason the second part of the question No. 10 has also to be answered inremains to deal with a point raised by learned counsel for the respondent State and that refers to question No. 4. That question was, whether rule 17 was ultra vires section 8 of the Act ? That question was answered against the respondent but as the respondent did not file any appeal, it is impossible for this court to go into the question.
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Union of India and Ors Vs. S.P. Rathore | DEEPAK GUPTA, J. 1. The short question involved in this appeal filed by the Union of India is whether disability pension is at all payable in case of a Air Force Officer who superannuated from service in the natural course and whose disability is less than 20%. 2. We may make reference to the Defence Service Regulations Pension Regulations for the Air Force, 1961. Regulations 37(a) and (b) under the heading Disability Pension – when admissible read as follows : 37(a) An officer who is retired from air force service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 percent or over may, on retirement be awarded disability pension consisting of a service element and a disability element in accordance with the regulations in this section. (b) The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II. 3. A bare reading of the aforesaid provision makes it clear that an officer of the Air Force who retires on attaining the age of superannuation is entitled to disability pension only if disability is assessed at 20% or above. Furthermore, this disability must be attributable or aggravated by service rendered in the Air Force. 4. So far as the second part is concerned, we are not going into that issue since in this case, it is admitted that the disability was aggravated due to service rendered in the Air Force. The only issue is whether the Appellant not having 20% disability is at all entitled to disability pension. 5. Both learned senior counsel appearing for the Union of India and learned counsel appearing for the Respondent rely upon Paras 7.2 and 8.2 of Circular dated 31.1.2001 issued by Ministry of Defence which read as follows : 7.2 Where an Armed Forced personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:- table 8.2 For disabilities less than 100% but not less than 20% the above rates shall be proportionately reduced. No disability element shall be payable for disabilities less than 20%. Provisions contained in Para 7.2 above shall not be applicable for computing disability element. Disability actually assessed by the duly approved Release Medical Board/Invaliding Medical Board as accepted by the Pension Sanctioning Authority, shall reckon for computing disability element. 6. Para 8.2 falls under the heading of Disability Element on Disability/Discharge. A bare reading of Para 8.2 shows that where the disability is more than 20% but less than 80%, the rates prescribed earlier would be proportionately reduced. Again, it is made clear that no disability element shall be payable for disabilities less than 20%. Para 8.2 also provides that the provisions contained in Para 7.2 shall not be applicable for computing disability element in such cases. Para 7.2 which deals with officials of Armed Forces invalided out under circumstances mentioned in Para 4.1 would be entitled to rounding of the disability. Therefore, if the disability was less than 50%, it would be rounded off to 50%. If the disability was between 50 and 75% it would be rounded off to 75%. If the disability was between 76 and 100% it would be rounded off to 100%. 7. Reliance has been placed by the learned counsel for the Respondent on the Order dated 10.12.2014 of this Court in Union of India and Ors. Versus Ram Avtar (Civil Appeal No.418 of 2012 etc.) and subsequent letter dated 18.4.2016 sent by the Ministry of Defence to the Chief of all the Armed Forces. 8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.2. 9. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off. 10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all. 11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case. | 0[ds]6. Para 8.2 falls under the heading of Disability Element on Disability/Discharge. A bare reading of Para 8.2 shows that where the disability is more than 20% but less than 80%, the rates prescribed earlier would be proportionately reduced. Again, it is made clear that no disability element shall be payable for disabilities less than 20%. Para 8.2 also provides that the provisions contained in Para 7.2 shall not be applicable for computing disability element in such cases. Para 7.2 which deals with officials of Armed Forces invalided out under circumstances mentioned in Para 4.1 would be entitled to rounding of the disability. Therefore, if the disability was less than 50%, it would be rounded off to 50%. If the disability was between 50 and 75% it would be rounded off to 75%. If the disability was between 76 and 100% it would be rounded off to 100%8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case2. We may make reference to the Defence Service Regulations Pension Regulations for the Air Force, 1961.3. A bare reading of the aforesaid provision makes it clear that an officer of the Air Force who retires on attaining the age of superannuation is entitled to disability pension only if disability is assessed at 20% or above. Furthermore, this disability must be attributable or aggravated by service rendered in the Air Force4. So far as the second part is concerned, we are not going into that issue since in this case, it is admitted that the disability was aggravated due to service rendered in the Air Force.The only issue is whether the Appellant not having 20% disability is at all entitled to disability pension8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.2In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at allreferred to herein above would be applicable even to those who superannuated under Para 8.2If a person is not entitled to the disability pension, there would be no question of rounding | 0 | 927 | 949 | ### 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:
DEEPAK GUPTA, J. 1. The short question involved in this appeal filed by the Union of India is whether disability pension is at all payable in case of a Air Force Officer who superannuated from service in the natural course and whose disability is less than 20%. 2. We may make reference to the Defence Service Regulations Pension Regulations for the Air Force, 1961. Regulations 37(a) and (b) under the heading Disability Pension – when admissible read as follows : 37(a) An officer who is retired from air force service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 percent or over may, on retirement be awarded disability pension consisting of a service element and a disability element in accordance with the regulations in this section. (b) The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II. 3. A bare reading of the aforesaid provision makes it clear that an officer of the Air Force who retires on attaining the age of superannuation is entitled to disability pension only if disability is assessed at 20% or above. Furthermore, this disability must be attributable or aggravated by service rendered in the Air Force. 4. So far as the second part is concerned, we are not going into that issue since in this case, it is admitted that the disability was aggravated due to service rendered in the Air Force. The only issue is whether the Appellant not having 20% disability is at all entitled to disability pension. 5. Both learned senior counsel appearing for the Union of India and learned counsel appearing for the Respondent rely upon Paras 7.2 and 8.2 of Circular dated 31.1.2001 issued by Ministry of Defence which read as follows : 7.2 Where an Armed Forced personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:- table 8.2 For disabilities less than 100% but not less than 20% the above rates shall be proportionately reduced. No disability element shall be payable for disabilities less than 20%. Provisions contained in Para 7.2 above shall not be applicable for computing disability element. Disability actually assessed by the duly approved Release Medical Board/Invaliding Medical Board as accepted by the Pension Sanctioning Authority, shall reckon for computing disability element. 6. Para 8.2 falls under the heading of Disability Element on Disability/Discharge. A bare reading of Para 8.2 shows that where the disability is more than 20% but less than 80%, the rates prescribed earlier would be proportionately reduced. Again, it is made clear that no disability element shall be payable for disabilities less than 20%. Para 8.2 also provides that the provisions contained in Para 7.2 shall not be applicable for computing disability element in such cases. Para 7.2 which deals with officials of Armed Forces invalided out under circumstances mentioned in Para 4.1 would be entitled to rounding of the disability. Therefore, if the disability was less than 50%, it would be rounded off to 50%. If the disability was between 50 and 75% it would be rounded off to 75%. If the disability was between 76 and 100% it would be rounded off to 100%. 7. Reliance has been placed by the learned counsel for the Respondent on the Order dated 10.12.2014 of this Court in Union of India and Ors. Versus Ram Avtar (Civil Appeal No.418 of 2012 etc.) and subsequent letter dated 18.4.2016 sent by the Ministry of Defence to the Chief of all the Armed Forces. 8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.2. 9. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off. 10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all. 11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case.
### Response:
0
### Explanation:
6. Para 8.2 falls under the heading of Disability Element on Disability/Discharge. A bare reading of Para 8.2 shows that where the disability is more than 20% but less than 80%, the rates prescribed earlier would be proportionately reduced. Again, it is made clear that no disability element shall be payable for disabilities less than 20%. Para 8.2 also provides that the provisions contained in Para 7.2 shall not be applicable for computing disability element in such cases. Para 7.2 which deals with officials of Armed Forces invalided out under circumstances mentioned in Para 4.1 would be entitled to rounding of the disability. Therefore, if the disability was less than 50%, it would be rounded off to 50%. If the disability was between 50 and 75% it would be rounded off to 75%. If the disability was between 76 and 100% it would be rounded off to 100%8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case2. We may make reference to the Defence Service Regulations Pension Regulations for the Air Force, 1961.3. A bare reading of the aforesaid provision makes it clear that an officer of the Air Force who retires on attaining the age of superannuation is entitled to disability pension only if disability is assessed at 20% or above. Furthermore, this disability must be attributable or aggravated by service rendered in the Air Force4. So far as the second part is concerned, we are not going into that issue since in this case, it is admitted that the disability was aggravated due to service rendered in the Air Force.The only issue is whether the Appellant not having 20% disability is at all entitled to disability pension8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. As pointed out above, both Regulation 37(a) and Para 8.2 clearly provide that the disability element is not admissible if the disability is less than 20%. In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. In view of the provisions referred to above, we are clearly of the view that the original petitioner/applicant before the AFT is not entitled to disability pension. Therefore, the question of applying the provisions of Para 7.2 would not arise in his case8. This Court in Ram Avtar (supra), while approving the judgment of the Armed Forces Tribunal only held that the principle of rounding off as envisaged in Para 7.2 referred to herein above would be applicable even to those who superannuated under Para 8.2. The Court did not deal with the issue of entitlement to disability pension under the Regulations of Para 8.2In that view of the matter, the question of rounding off would not apply if the disability is less than 20%. If a person is not entitled to the disability pension, there would be no question of rounding off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at allreferred to herein above would be applicable even to those who superannuated under Para 8.2If a person is not entitled to the disability pension, there would be no question of rounding
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State of Uttar Pradesh Vs. M/s. Manohar & Co., Bareilly | the Act was issued and the escaped turnover was brought to assessment on the basis of best judgment assessment. The escaped turnover was determined at Rupees three lacs. The assessee challenged this reassessment before the Judge (Appeals). It contended before the Judge (Appeals) that the reassessment in question is invalid inasmuch as the assessing authority did not comply with the mandatory requirements of S. 18 (4) of the Act. Though the Judge (Appeals) found some force in that argument, it rejected the appeal of the assessee on the ground that as it had not challenged the original assessment, it was not open to it to challenge the reassessment made. Thereafter the assessee took up the matter in revision to the Board of Revenue but the Board also rejected the revision petition of the assessee on the ground that it is not open to it to challenge the reassessment as it had submitted to the original assessment. But at the instance of the assessee the Judge (Revisions) referred the two questions mentioned earlier for the decision of the High Court. The reference was first heard by a Division Bench of the Allahabad High Court consisting of Manchanda and Beg JJ. Manchanda J. answered those questions in favour of the assessee whereasBeg J. answered those questions against the assessee. Thereafter the matter was placed before Oak J. who agreed with the view taken by Manchanda J.3. The provisions of the Act which are relevant for our present purpose are Ss. 3, 7 and 18. In addition to these provisions, we must also read rule 39 of the rules framed under the Act. The aforementioned provisions to the extent relevant for our present purpose may now be read:4. Section 3 which deals with the liability to tax says:"Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of three ples a reupee on his turnover of such year, which shall be determined in such manner as may be prescribed."(The other portion or the section is not relevant for our present purpose).5. Section 7 which deals with determination of turnover and assessment of tax to the extent material reads as follows:"Subject to the provisions of section 18, every dealer whose turnover in the previous year is Rs. 12,000 or more in a year shall submit such return or returns of his turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed:Provided that the State Government may prescribe that any dealer or class of dealer may submit, in lieu of the return or returns specified in the section, a return or returns of his turnover of the assessment year at such intervals, in such form and verified in such manner as may be prescribed and thereupon all the provisions of this Act shall apply as if such return or returns had been duly submitted under this section. . . "Section 18 deals with assessment of reconstituted or new firms and change of partnership. That section to the extent, material for our present purpose reads:(1). . . . .(2) . . .. . ,(3) (a) Every dealer or a reconstituted firm commencing business during the course of an assessment year whose monthly turnover is estimated to be not less than 1,000 shall give notice of the fact to the assessing authority within fifteen days of such commencement and shall submit monthly statements of his turnover within seven days of the expiry of each month in such form and verified in such manner as may be prescribed in respect of the portion of such year during which the business is continued.(b)If the assessing authority after making such enquiry as he considers necessary, is satisfied that such returns submitted under clause (a) are correct and complete and that the average monthly turnover is not less than Rs. 1000 he shall assess the dealer on the total turnover shown in the returns.(c) . . . . .(4) The assessing authority shall fix the turnover of the dealer for the next succeeding assessment year at the amount of average monthly turnover determined by in accordance with clause (b) or (c) of sub-section (3) as the case may be multiplied by 12 and shall assess the tax thereon." Rule 39 deals with an election of assessment year. It says:"Any dealer may elect to submit returns of his turnover of the assessment year in lieu of the returns of turnover of the previous year, and shall signify such election in the return filed by him in Form IV:Provided that a dealer who did not carry on business during the whole of the previous year shall elect to submit his returns of the assessment year...."6. It is not necessary to elaborately consider the provisions of the law in order to answers the first question as that matter is concluded by the decision of this Court in Commr. of Sales Tax, Lucknow v. Madan Lal Dayal Chand, (1968) 21 STC 80 (SC). In view of that decision, it was agreed by the Counsel for the parties that the first question has to be answered in the negative and in favour of the assessee. From that decision it follows that an assessment in contravention of S. 18 (4) of the Act though in conformity with Rule 39 is an invalid assessment.7. Now coming to the second question, the fact that the assessee was illegally assessed originally without challenge does not confer power on the Department to continue that illegality in the reassessment proceedings. Section 18 (4) applies to assessments under S. 21 as well. No separate procedure is prescribed by the Act for assessments under S. 21. Further there can be no estoppel against statute. While dealing with question No. 2. it is not necessary for us to decide as to the validity of the original assessment. In this appeal we are only concerned with the re-assessment proceedings. | 0[ds]In view of that decision, it was agreed by the Counsel for the parties that the first question has to be answered in the negative and in favour of the assessee. From that decision it follows that an assessment in contravention of S. 18 (4) of the Act though in conformity with Rule 39 is an invalid assessment.7. Now coming to the second question, the fact that the assessee was illegally assessed originally without challenge does not confer power on the Department to continue that illegality in the reassessment proceedings. Section 18 (4) applies to assessments under S. 21 as well. No separate procedure is prescribed by the Act for assessments under S. 21. Further there can be no estoppel against statute. While dealing with question No. 2. it is not necessary for us to decide as to the validity of the original assessment. In this appeal we are only concerned with the | 0 | 1,408 | 171 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the Act was issued and the escaped turnover was brought to assessment on the basis of best judgment assessment. The escaped turnover was determined at Rupees three lacs. The assessee challenged this reassessment before the Judge (Appeals). It contended before the Judge (Appeals) that the reassessment in question is invalid inasmuch as the assessing authority did not comply with the mandatory requirements of S. 18 (4) of the Act. Though the Judge (Appeals) found some force in that argument, it rejected the appeal of the assessee on the ground that as it had not challenged the original assessment, it was not open to it to challenge the reassessment made. Thereafter the assessee took up the matter in revision to the Board of Revenue but the Board also rejected the revision petition of the assessee on the ground that it is not open to it to challenge the reassessment as it had submitted to the original assessment. But at the instance of the assessee the Judge (Revisions) referred the two questions mentioned earlier for the decision of the High Court. The reference was first heard by a Division Bench of the Allahabad High Court consisting of Manchanda and Beg JJ. Manchanda J. answered those questions in favour of the assessee whereasBeg J. answered those questions against the assessee. Thereafter the matter was placed before Oak J. who agreed with the view taken by Manchanda J.3. The provisions of the Act which are relevant for our present purpose are Ss. 3, 7 and 18. In addition to these provisions, we must also read rule 39 of the rules framed under the Act. The aforementioned provisions to the extent relevant for our present purpose may now be read:4. Section 3 which deals with the liability to tax says:"Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of three ples a reupee on his turnover of such year, which shall be determined in such manner as may be prescribed."(The other portion or the section is not relevant for our present purpose).5. Section 7 which deals with determination of turnover and assessment of tax to the extent material reads as follows:"Subject to the provisions of section 18, every dealer whose turnover in the previous year is Rs. 12,000 or more in a year shall submit such return or returns of his turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed:Provided that the State Government may prescribe that any dealer or class of dealer may submit, in lieu of the return or returns specified in the section, a return or returns of his turnover of the assessment year at such intervals, in such form and verified in such manner as may be prescribed and thereupon all the provisions of this Act shall apply as if such return or returns had been duly submitted under this section. . . "Section 18 deals with assessment of reconstituted or new firms and change of partnership. That section to the extent, material for our present purpose reads:(1). . . . .(2) . . .. . ,(3) (a) Every dealer or a reconstituted firm commencing business during the course of an assessment year whose monthly turnover is estimated to be not less than 1,000 shall give notice of the fact to the assessing authority within fifteen days of such commencement and shall submit monthly statements of his turnover within seven days of the expiry of each month in such form and verified in such manner as may be prescribed in respect of the portion of such year during which the business is continued.(b)If the assessing authority after making such enquiry as he considers necessary, is satisfied that such returns submitted under clause (a) are correct and complete and that the average monthly turnover is not less than Rs. 1000 he shall assess the dealer on the total turnover shown in the returns.(c) . . . . .(4) The assessing authority shall fix the turnover of the dealer for the next succeeding assessment year at the amount of average monthly turnover determined by in accordance with clause (b) or (c) of sub-section (3) as the case may be multiplied by 12 and shall assess the tax thereon." Rule 39 deals with an election of assessment year. It says:"Any dealer may elect to submit returns of his turnover of the assessment year in lieu of the returns of turnover of the previous year, and shall signify such election in the return filed by him in Form IV:Provided that a dealer who did not carry on business during the whole of the previous year shall elect to submit his returns of the assessment year...."6. It is not necessary to elaborately consider the provisions of the law in order to answers the first question as that matter is concluded by the decision of this Court in Commr. of Sales Tax, Lucknow v. Madan Lal Dayal Chand, (1968) 21 STC 80 (SC). In view of that decision, it was agreed by the Counsel for the parties that the first question has to be answered in the negative and in favour of the assessee. From that decision it follows that an assessment in contravention of S. 18 (4) of the Act though in conformity with Rule 39 is an invalid assessment.7. Now coming to the second question, the fact that the assessee was illegally assessed originally without challenge does not confer power on the Department to continue that illegality in the reassessment proceedings. Section 18 (4) applies to assessments under S. 21 as well. No separate procedure is prescribed by the Act for assessments under S. 21. Further there can be no estoppel against statute. While dealing with question No. 2. it is not necessary for us to decide as to the validity of the original assessment. In this appeal we are only concerned with the re-assessment proceedings.
### Response:
0
### Explanation:
In view of that decision, it was agreed by the Counsel for the parties that the first question has to be answered in the negative and in favour of the assessee. From that decision it follows that an assessment in contravention of S. 18 (4) of the Act though in conformity with Rule 39 is an invalid assessment.7. Now coming to the second question, the fact that the assessee was illegally assessed originally without challenge does not confer power on the Department to continue that illegality in the reassessment proceedings. Section 18 (4) applies to assessments under S. 21 as well. No separate procedure is prescribed by the Act for assessments under S. 21. Further there can be no estoppel against statute. While dealing with question No. 2. it is not necessary for us to decide as to the validity of the original assessment. In this appeal we are only concerned with the
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Andhra Pradesh Tourism Development Corporation Ltd. & Another Vs. M/s. Pampa Hotels Ltd | is no arbitration agreement between the respondent (applicant in the application under section 11 of the Act) and APTDC against whom such agreement is sought to be enforced. Re : Question (ii) : 12. Let us next consider the question as to who should decide the question whether there is an existing arbitration agreement or not. Should it be decided by the Chief Justice or his Designate before making an appointment under section 11 of the Act, or by the Arbitrator who is appointed under section 11 of the Act? This question is no longer res integra. It is held in SBP & Co. v. Patel Engineering Ltd. [2005(8) SCC 618] and National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. [2009(1) SCC 267] that the question whether there is an arbitration agreement and whether the party who has applied under section 11 of the Act, is a party to such an agreement, is an issue which is to be decided by the Chief Justice or his Designate under section 11 of the Act before appointing an arbitrator. Therefore there can be no doubt that the issue ought to have been decided by the learned Designate of the Chief Justice and could not have been left to the arbitrator. But as noticed above, the learned Designate proceeded on the basis that while acting under section 11 of the Act, he was not acting under a judicial capacity but only under an administrative capacity and therefore he cannot decide these contentious issues. He did so by following the two decisions in Konkan Railway (supra) which were then holding the field. 13. In SBP (supra), a seven-Judge Bench of this Court overruled the two decisions in Konkan Railway. The decision in SBP was rendered on 26.10.2005, a few weeks after the impugned decision by the Designate on 16.8.2005. Having regard to the fact that several decisions rendered under section 11 of the Act had followed the decisions in Konkan Railway, this court, when it rendered its decision in SBP, restored to prospective overruling by directing as follows: "(x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. [2002(2) SCC 388] and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or Arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act." (emphasis supplied) This Court in Sarwan Kumar v. Madan Lal Aggarwal [2003(4) SCC 147] observed: "The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court." 14. Learned counsel for the appellants contended that the impugned order was rendered on 16.8.2005; that as on 26.10.2005 when the decision in SBP was rendered, the time for filing a special leave petition under Article 136 of the Constitution had not expired; that the special leave petition was filed by the appellant on 22.11.2005, which has been entertained by granting leave. The appellants therefore contend that this appeal should be considered as a continuation of the application under section 11 of the Act or as pending matter to which the decision in SBP would apply, even though the Designate had rendered the decision on 16.8.2005. The appellants submitted that a pending matter would refer not only to the original proceedings but also would include any appeal arising therefrom and therefore any proceeding which has not attained finality is a pending matter. 15. What the appellants contend, would have been the position if there was a statutory provision for appeal and SBP had directed that in view of prospective overruling of Konkan Railway pending matters will not be affected. But sub-section (7) of Section 11 of the Act makes the decision of the Chief Justice or his designate final. There is no right of appeal against the decision under Section 11 of the Act. Further, the seven Judge Bench in SBP issued the categorical direction that appointment of Arbitrators made till then are to be treated as valid and all objections are to be left to be decided under Section 16 of the Act.16. On account of the prospective overruling direction in SBP, any appointment of an arbitrator under Section 11 of the Act made prior to 26.10.2005 has to be treated as valid and all objections including the existence or validity of the arbitration agreement, have to be decided by the arbitrator under section 16 of the Act. The legal position enunciated in the judgment in SBP will govern only the applications to be filed under Section 11 of the Act from 26.10.2005 as also the applications under section 11(6) of the Act pending as on 26.10.2005 (where the Arbitrator was not yet appointed). In view of this categorical direction in SBP, it is not possible to accept the contention of the appellant that this case should be treated as a pending application. In fact we may mention that in Maharishi Dayanand University v. Anand Coop. L/C Society Ltd. & Anr. [2007(5) SCC 295], this Court held that if any appointment has been made before 26.10.2005, that appointment has to be treated as valid even if it is challenged before this Court. | 1[ds]15. What the appellants contend, would have been the position if there was a statutory provision for appeal and SBP had directed that in view of prospective overruling of Konkan Railway pending matters will not be affected. But(7) of Section 11 of the Act makes the decision of the Chief Justice or his designate final. There is no right of appeal against the decision under Section 11 of the Act. Further, the seven Judge Bench in SBP issued the categorical direction that appointment of Arbitrators made till then are to be treated as valid and all objections are to be left to be decided under Section 16 of the Act.16. On account of the prospective overruling direction in SBP, any appointment of an arbitrator under Section 11 of the Act made prior to 26.10.2005 has to be treated as valid and all objections including the existence or validity of the arbitration agreement, have to be decided by the arbitrator under section 16 of the Act. The legal position enunciated in the judgment in SBP will govern only the applications to be filed under Section 11 of the Act from 26.10.2005 as also the applications under section 11(6) of the Act pending as on 26.10.2005 (where the Arbitrator was not yet appointed). In view of this categorical direction in SBP, it is not possible to accept the contention of the appellant that this case should be treated as a pending application. In fact we may mention that in Maharishi Dayanand University v. Anand Coop. L/C Society Ltd. & Anr. [2007(5) SCC 295], this Court held that if any appointment has been made before 26.10.2005, that appointment has to be treated as valid even if it is challenged before this Court. | 1 | 3,284 | 324 | ### Instruction:
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is no arbitration agreement between the respondent (applicant in the application under section 11 of the Act) and APTDC against whom such agreement is sought to be enforced. Re : Question (ii) : 12. Let us next consider the question as to who should decide the question whether there is an existing arbitration agreement or not. Should it be decided by the Chief Justice or his Designate before making an appointment under section 11 of the Act, or by the Arbitrator who is appointed under section 11 of the Act? This question is no longer res integra. It is held in SBP & Co. v. Patel Engineering Ltd. [2005(8) SCC 618] and National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. [2009(1) SCC 267] that the question whether there is an arbitration agreement and whether the party who has applied under section 11 of the Act, is a party to such an agreement, is an issue which is to be decided by the Chief Justice or his Designate under section 11 of the Act before appointing an arbitrator. Therefore there can be no doubt that the issue ought to have been decided by the learned Designate of the Chief Justice and could not have been left to the arbitrator. But as noticed above, the learned Designate proceeded on the basis that while acting under section 11 of the Act, he was not acting under a judicial capacity but only under an administrative capacity and therefore he cannot decide these contentious issues. He did so by following the two decisions in Konkan Railway (supra) which were then holding the field. 13. In SBP (supra), a seven-Judge Bench of this Court overruled the two decisions in Konkan Railway. The decision in SBP was rendered on 26.10.2005, a few weeks after the impugned decision by the Designate on 16.8.2005. Having regard to the fact that several decisions rendered under section 11 of the Act had followed the decisions in Konkan Railway, this court, when it rendered its decision in SBP, restored to prospective overruling by directing as follows: "(x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. [2002(2) SCC 388] and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or Arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act." (emphasis supplied) This Court in Sarwan Kumar v. Madan Lal Aggarwal [2003(4) SCC 147] observed: "The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court." 14. Learned counsel for the appellants contended that the impugned order was rendered on 16.8.2005; that as on 26.10.2005 when the decision in SBP was rendered, the time for filing a special leave petition under Article 136 of the Constitution had not expired; that the special leave petition was filed by the appellant on 22.11.2005, which has been entertained by granting leave. The appellants therefore contend that this appeal should be considered as a continuation of the application under section 11 of the Act or as pending matter to which the decision in SBP would apply, even though the Designate had rendered the decision on 16.8.2005. The appellants submitted that a pending matter would refer not only to the original proceedings but also would include any appeal arising therefrom and therefore any proceeding which has not attained finality is a pending matter. 15. What the appellants contend, would have been the position if there was a statutory provision for appeal and SBP had directed that in view of prospective overruling of Konkan Railway pending matters will not be affected. But sub-section (7) of Section 11 of the Act makes the decision of the Chief Justice or his designate final. There is no right of appeal against the decision under Section 11 of the Act. Further, the seven Judge Bench in SBP issued the categorical direction that appointment of Arbitrators made till then are to be treated as valid and all objections are to be left to be decided under Section 16 of the Act.16. On account of the prospective overruling direction in SBP, any appointment of an arbitrator under Section 11 of the Act made prior to 26.10.2005 has to be treated as valid and all objections including the existence or validity of the arbitration agreement, have to be decided by the arbitrator under section 16 of the Act. The legal position enunciated in the judgment in SBP will govern only the applications to be filed under Section 11 of the Act from 26.10.2005 as also the applications under section 11(6) of the Act pending as on 26.10.2005 (where the Arbitrator was not yet appointed). In view of this categorical direction in SBP, it is not possible to accept the contention of the appellant that this case should be treated as a pending application. In fact we may mention that in Maharishi Dayanand University v. Anand Coop. L/C Society Ltd. & Anr. [2007(5) SCC 295], this Court held that if any appointment has been made before 26.10.2005, that appointment has to be treated as valid even if it is challenged before this Court.
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15. What the appellants contend, would have been the position if there was a statutory provision for appeal and SBP had directed that in view of prospective overruling of Konkan Railway pending matters will not be affected. But(7) of Section 11 of the Act makes the decision of the Chief Justice or his designate final. There is no right of appeal against the decision under Section 11 of the Act. Further, the seven Judge Bench in SBP issued the categorical direction that appointment of Arbitrators made till then are to be treated as valid and all objections are to be left to be decided under Section 16 of the Act.16. On account of the prospective overruling direction in SBP, any appointment of an arbitrator under Section 11 of the Act made prior to 26.10.2005 has to be treated as valid and all objections including the existence or validity of the arbitration agreement, have to be decided by the arbitrator under section 16 of the Act. The legal position enunciated in the judgment in SBP will govern only the applications to be filed under Section 11 of the Act from 26.10.2005 as also the applications under section 11(6) of the Act pending as on 26.10.2005 (where the Arbitrator was not yet appointed). In view of this categorical direction in SBP, it is not possible to accept the contention of the appellant that this case should be treated as a pending application. In fact we may mention that in Maharishi Dayanand University v. Anand Coop. L/C Society Ltd. & Anr. [2007(5) SCC 295], this Court held that if any appointment has been made before 26.10.2005, that appointment has to be treated as valid even if it is challenged before this Court.
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Mangal Amusement Park(P) Ltd Vs. State Of M.P | merely on that count. The following observations of this Court in para 35 of Jasbir Singh Chhabra & Ors. vs. State of Punjab reported in 2010 (4) SCC 192 are instructive in this behalf:- “35. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous considerations……” 24. The High Court has held in para 23 of the impugned judgment that in any case admittedly the license had come to an end by efflux of time in the month of the June 2010, and therefore the validity and legality of the letter/order dated 23.9.2003 had become academic, and it was no longer necessary to examine that issue. We cannot find fault with the High Court on that account, since quashing of this letter cannot in any way lead to the renewal of the license which had already expired. Besides, the respondents had valid reasons not to renew the license as indicated in the show cause notice dated 8.1.2007. The construction of Amusement Club or a Banquet Hall could certainly not be a part of a Children’s Amusement Park. The parcel of land was allotted for setting up of a children’s park with games and rides as indicated in the document of license. Additionally, what was permitted were the food and beverages centers, kiosks, shops, administrative building and toilets, which would be in furtherance of this objective. The Banquet Hall and an amusement club which would be used by adults would not fit in the purpose of Children’s Amusement Park. As stated in clause 8 of the show cause notice, it clearly indicated that the appellants did not want to run the activity related to the Children’s amusement park on the land allotted. 25. (i) It was submitted on behalf of the appellants that they had made good investment in the concerned parcel of land with legitimate expectations, and, therefore, the respondents were estopped from discontinuing their allotment on the basis of the doctrine of promissory estoppel. This submission was disputed by Shri Vikas Singh, learned senior counsel appearing for IDA. He ,firstly, pointed out that more than half of the land remained un-utilised even 12 years after the allotment, and, in fact, the park was not functioning for quite sometime. The games and rides which were placed on this parcel of land were in the nature of fixtures, and not permanent additions as such, and could be removed therefrom when the appellants were required to vacate. (ii) Having noted these submissions we are of the view that since the document of allotment was a license and not one creating any interest, the provision of renewal contained therein cannot be read as laying down a mandatory requirement. Besides, as stated above, clause 14 of the document of license clearly stated that in the event of violation of any of the terms and conditions on the part of the licensee, the decision of the Chairman of IDA was final. Para 7 of the show cause notice in fact stated that the necessary action to establish the Children’s Amusement Park had not been taken since half of the land had remained undeveloped, and it amounted to violating the conditions of license. The doctrine of promissory estoppel can certainly not be permitted to be invoked on such a background. 26. (i) The appellants had made one more prayer namely to quash and set aside the notification dated 19.11.2003. Section 23-A of the M.P. Act permits the modification of the provisions in the development plan by following the due procedure of law as laid down therein. In the instant case, a notification had been issued earlier on 9.3.2001 inviting the objections to the proposed modification. The appellants were heard with respect to these objections, and thereafter the notification dated 19.11.2003 had been issued approving the proposed modification. It was contended on behalf of the appellants that the modification was a motivated one. The appellants submitted that under the modification, a parcel of land in nearby vicinity which was earlier reserved for a green area, was now being permitted for a commercial use, whereas the user of the land which was marked for the Children’s Amusement Park, was being changed to a regional park. This was with a view to accommodate the constructions which had come up on the other parcel of land in the vicinity.(ii) In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53 , in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for the Children’s amusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count either. | 0[ds]23. In our view, the appellants have tried to make much ado about the stand which the IDA took on earlier occasions in favour of the appellants. One has to recognise that where different authorities are dealing with a particular subject, it is quite possible that on some occasions, they may take a stand different from each other, though ultimately it is the decision of the competent authority which matters, and it cannot be tainted with mala fides merely on thatnoted these submissions we are of the view that since the document of allotment was a license and not one creating any interest, the provision of renewal contained therein cannot be read as laying down a mandatory requirement. Besides, as stated above, clause 14 of the document of license clearly stated that in the event of violation of any of the terms and conditions on the part of the licensee, the decision of the Chairman of IDA was final. Para 7 of the show cause notice in fact stated that the necessary action to establish theAmusement Park had not been taken since half of the land had remained undeveloped, and it amounted to violating the conditions of license. The doctrine of promissory estoppel can certainly not be permitted to be invoked on such awas with a view to accommodate the constructions which had come up on the other parcel of land in the vicinity.In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53 , in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for theamusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count | 0 | 6,329 | 414 | ### Instruction:
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merely on that count. The following observations of this Court in para 35 of Jasbir Singh Chhabra & Ors. vs. State of Punjab reported in 2010 (4) SCC 192 are instructive in this behalf:- “35. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by malafides or is influenced by extraneous considerations……” 24. The High Court has held in para 23 of the impugned judgment that in any case admittedly the license had come to an end by efflux of time in the month of the June 2010, and therefore the validity and legality of the letter/order dated 23.9.2003 had become academic, and it was no longer necessary to examine that issue. We cannot find fault with the High Court on that account, since quashing of this letter cannot in any way lead to the renewal of the license which had already expired. Besides, the respondents had valid reasons not to renew the license as indicated in the show cause notice dated 8.1.2007. The construction of Amusement Club or a Banquet Hall could certainly not be a part of a Children’s Amusement Park. The parcel of land was allotted for setting up of a children’s park with games and rides as indicated in the document of license. Additionally, what was permitted were the food and beverages centers, kiosks, shops, administrative building and toilets, which would be in furtherance of this objective. The Banquet Hall and an amusement club which would be used by adults would not fit in the purpose of Children’s Amusement Park. As stated in clause 8 of the show cause notice, it clearly indicated that the appellants did not want to run the activity related to the Children’s amusement park on the land allotted. 25. (i) It was submitted on behalf of the appellants that they had made good investment in the concerned parcel of land with legitimate expectations, and, therefore, the respondents were estopped from discontinuing their allotment on the basis of the doctrine of promissory estoppel. This submission was disputed by Shri Vikas Singh, learned senior counsel appearing for IDA. He ,firstly, pointed out that more than half of the land remained un-utilised even 12 years after the allotment, and, in fact, the park was not functioning for quite sometime. The games and rides which were placed on this parcel of land were in the nature of fixtures, and not permanent additions as such, and could be removed therefrom when the appellants were required to vacate. (ii) Having noted these submissions we are of the view that since the document of allotment was a license and not one creating any interest, the provision of renewal contained therein cannot be read as laying down a mandatory requirement. Besides, as stated above, clause 14 of the document of license clearly stated that in the event of violation of any of the terms and conditions on the part of the licensee, the decision of the Chairman of IDA was final. Para 7 of the show cause notice in fact stated that the necessary action to establish the Children’s Amusement Park had not been taken since half of the land had remained undeveloped, and it amounted to violating the conditions of license. The doctrine of promissory estoppel can certainly not be permitted to be invoked on such a background. 26. (i) The appellants had made one more prayer namely to quash and set aside the notification dated 19.11.2003. Section 23-A of the M.P. Act permits the modification of the provisions in the development plan by following the due procedure of law as laid down therein. In the instant case, a notification had been issued earlier on 9.3.2001 inviting the objections to the proposed modification. The appellants were heard with respect to these objections, and thereafter the notification dated 19.11.2003 had been issued approving the proposed modification. It was contended on behalf of the appellants that the modification was a motivated one. The appellants submitted that under the modification, a parcel of land in nearby vicinity which was earlier reserved for a green area, was now being permitted for a commercial use, whereas the user of the land which was marked for the Children’s Amusement Park, was being changed to a regional park. This was with a view to accommodate the constructions which had come up on the other parcel of land in the vicinity.(ii) In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53 , in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for the Children’s amusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count either.
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23. In our view, the appellants have tried to make much ado about the stand which the IDA took on earlier occasions in favour of the appellants. One has to recognise that where different authorities are dealing with a particular subject, it is quite possible that on some occasions, they may take a stand different from each other, though ultimately it is the decision of the competent authority which matters, and it cannot be tainted with mala fides merely on thatnoted these submissions we are of the view that since the document of allotment was a license and not one creating any interest, the provision of renewal contained therein cannot be read as laying down a mandatory requirement. Besides, as stated above, clause 14 of the document of license clearly stated that in the event of violation of any of the terms and conditions on the part of the licensee, the decision of the Chairman of IDA was final. Para 7 of the show cause notice in fact stated that the necessary action to establish theAmusement Park had not been taken since half of the land had remained undeveloped, and it amounted to violating the conditions of license. The doctrine of promissory estoppel can certainly not be permitted to be invoked on such awas with a view to accommodate the constructions which had come up on the other parcel of land in the vicinity.In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53 , in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for theamusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count
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Petine Shipping Inc. of Monrovia Vs. The Minerals and Metals Trading Corporation of India Ltd | was not an application as envisaged under section 31(4) of the Act and thus Delhi High Court did not get conferred with the exclusive jurisdiction to entertain all applications pertaining to the present arbitration dispute. It is further contended that if this becomes the situation, then any party could indulge in forum shopping by filling a superficial application before a court and withdrawing the same merely to ensure that all subsequent applications be made before that court. In support of his contentions, learned Counsel would draw our attention to observations made by this Court in the case of Union of India vs. Surjeet Singh Atwal, (1969) (2) SCC 211 and M/s Guru Nanak Foundation vs. M/s Ratan Singh and Sons, (1981) (4) SCC 634. 10) In Union of India v. Surjeet Singh Atwal, (1969) (2) SCC 211 , this Court has held that an application under Section 34 of the Act (for stay of suit) does not amount to an application under Section 31(4) of the Act and it belongs to a different category because such application does not lead to a reference to arbitration. 11) In M/s. Guru Nanak Foundation v. M/s. Ratan Singh & Sons, (1981) 4 SCC 634 , this Court has observed that even though the first Court to be approached by the parties had been the Delhi High Court, since eventually the Supreme Court appointed the arbitrator and gave further directions regarding the proceedings, it was the Supreme Court which was the competent Court under Section 31(4). 12) The only questions which needs our consideration is, whether Bombay High Court has the jurisdiction to adjudicate upon the Arbitration Petition, where a previous application had been filed before the Delhi High Court and subsequently dismissed by the same Court as having become in fructuous. 13) The main object of Section 31 of the Arbitration Act is to invest a single court with the exclusive jurisdiction to decide all questions relating to the matter of arbitration; this object is achieved by the combined operation of all its sub-sections. The words "application in a reference" used in sub-section (4) should therefore, be related back to sub-sections (2) and (3) and all applications regarding the conduct of arbitration proceedings or arising out of such proceedings or in which the court has to decide questions regarding the validity, effect, or existence of an award or an arbitration agreement between the parties to the agreement, should be treated as "application in a reference". 14) The very foundation for the jurisdiction of the court under Section 34 is the existence of an arbitration agreement. The applicant asserts that there is such an agreement, while the plaintiff either disputes the existence of such an agreement or pleads that it is invalid. Section 33 gives an independent right to a person who wishes to challenge the existence or validity of an arbitration agreement to anticipate the other side and to initiate proceedings to have these questions determined beforehand. Thus applications under Sections 33 and 34 both are fundamentally in the matter of arbitration proceedings and fall within the purview of Section 31(4) of the Arbitration Act, though the former is intended to make an arbitration agreement ineffective and the latter effective and neither leads to a reference. [See (1971) 1 SCC (Jour) 70] 15) In the case of State of M.P. v. Saith and Skelton (P) Ltd., (1972) 1 SCC 702 , this court has held that the expression `court will have to be understood as defined in Section 2(c) of the Act, only if there is nothing repugnant in the subject or context. It is in that light that the expression `court occurring in Section 14(2) of the Act will have to be understood and interpreted. It was this Court that appointed Shri V.S. Desai, on 29-1-1971 by consent of parties as an arbitrator and to make his award. It will be seen that no further directions were given in the said order which will indicate that this Court had not divested itself of its jurisdiction to deal with the award or matters arising out of the award. In fact the indications are to the contrary. The direction in the order dated 29-1-1971 is that the arbitrator is `to make his award. Surely the law contemplates further steps to be taken after the award has been made, and quite naturally the forum for taking the further action is only this Court. There was also direction to the effect that the parties are at liberty to apply for extension of time for making the award. In the absence of any other court having been invested with such jurisdiction by the order, the only conclusion that is possible is that such a request must be made only to the court which passed that order, namely, this Court. 16) Unlike in the present case where an application was filed before the Delhi High Court seeking declaration that appointment of Mr. Justice Deshpande as Arbitrator is valid. The same application became in fructuous because of the demise of Mr. Justice Deshpande and had to be dismissed as having become infructuous. The Delhi High Court neither gave any directions nor did it appoint an Arbitrator in the adjudication of the said application. 17) In Bharat Coking Coal Ltd. v. Annapurna Construction, (2008) 6 SCC 732 , this court observed that a distinction must be borne in mind in a case where this Court had no control over the proceedings and the case in which control of proceedings of the arbitrator had been retained.18) Therefore, in the view taken by this Court in Bharat Cooking case, although an application was filed before the Delhi High Court, but it did not retain any control over the said proceedings of the arbitrator. Also respondent did not file any application regarding appointment of another arbitrator in the Delhi High Court. Thus, the application filed before the Delhi High Court cannot be said to a reference made under Section 31(4) of the Act. | 1[ds]13) The main object of Section 31 of the Arbitration Act is to invest a single court with the exclusive jurisdiction to decide all questions relating to the matter of arbitration; this object is achieved by the combined operation of all its sub-sections. The words "application in a reference" used in sub-section (4) should therefore, be related back to sub-sections (2) and (3) and all applications regarding the conduct of arbitration proceedings or arising out of such proceedings or in which the court has to decide questions regarding the validity, effect, or existence of an award or an arbitration agreement between the parties to the agreement, should be treated as "application in athe absence of any other court having been invested with such jurisdiction by the order, the only conclusion that is possible is that such a request must be made only to the court which passed that order, namely, thisIn Bharat Coking Coal Ltd. v. Annapurna Construction, (2008) 6 SCC 732 , this court observed that a distinction must be borne in mind in a case where this Court had no control over the proceedings and the case in which control of proceedings of the arbitrator had been retained.18) Therefore, in the view taken by this Court in Bharat Cooking case, although an application was filed before the Delhi High Court, but it did not retain any control over the said proceedings of the arbitrator. Also respondent did not file any application regarding appointment of another arbitrator in the Delhi High Court. Thus, the application filed before the Delhi High Court cannot be said to a reference made under Section 31(4) of the Act. | 1 | 1,864 | 313 | ### Instruction:
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was not an application as envisaged under section 31(4) of the Act and thus Delhi High Court did not get conferred with the exclusive jurisdiction to entertain all applications pertaining to the present arbitration dispute. It is further contended that if this becomes the situation, then any party could indulge in forum shopping by filling a superficial application before a court and withdrawing the same merely to ensure that all subsequent applications be made before that court. In support of his contentions, learned Counsel would draw our attention to observations made by this Court in the case of Union of India vs. Surjeet Singh Atwal, (1969) (2) SCC 211 and M/s Guru Nanak Foundation vs. M/s Ratan Singh and Sons, (1981) (4) SCC 634. 10) In Union of India v. Surjeet Singh Atwal, (1969) (2) SCC 211 , this Court has held that an application under Section 34 of the Act (for stay of suit) does not amount to an application under Section 31(4) of the Act and it belongs to a different category because such application does not lead to a reference to arbitration. 11) In M/s. Guru Nanak Foundation v. M/s. Ratan Singh & Sons, (1981) 4 SCC 634 , this Court has observed that even though the first Court to be approached by the parties had been the Delhi High Court, since eventually the Supreme Court appointed the arbitrator and gave further directions regarding the proceedings, it was the Supreme Court which was the competent Court under Section 31(4). 12) The only questions which needs our consideration is, whether Bombay High Court has the jurisdiction to adjudicate upon the Arbitration Petition, where a previous application had been filed before the Delhi High Court and subsequently dismissed by the same Court as having become in fructuous. 13) The main object of Section 31 of the Arbitration Act is to invest a single court with the exclusive jurisdiction to decide all questions relating to the matter of arbitration; this object is achieved by the combined operation of all its sub-sections. The words "application in a reference" used in sub-section (4) should therefore, be related back to sub-sections (2) and (3) and all applications regarding the conduct of arbitration proceedings or arising out of such proceedings or in which the court has to decide questions regarding the validity, effect, or existence of an award or an arbitration agreement between the parties to the agreement, should be treated as "application in a reference". 14) The very foundation for the jurisdiction of the court under Section 34 is the existence of an arbitration agreement. The applicant asserts that there is such an agreement, while the plaintiff either disputes the existence of such an agreement or pleads that it is invalid. Section 33 gives an independent right to a person who wishes to challenge the existence or validity of an arbitration agreement to anticipate the other side and to initiate proceedings to have these questions determined beforehand. Thus applications under Sections 33 and 34 both are fundamentally in the matter of arbitration proceedings and fall within the purview of Section 31(4) of the Arbitration Act, though the former is intended to make an arbitration agreement ineffective and the latter effective and neither leads to a reference. [See (1971) 1 SCC (Jour) 70] 15) In the case of State of M.P. v. Saith and Skelton (P) Ltd., (1972) 1 SCC 702 , this court has held that the expression `court will have to be understood as defined in Section 2(c) of the Act, only if there is nothing repugnant in the subject or context. It is in that light that the expression `court occurring in Section 14(2) of the Act will have to be understood and interpreted. It was this Court that appointed Shri V.S. Desai, on 29-1-1971 by consent of parties as an arbitrator and to make his award. It will be seen that no further directions were given in the said order which will indicate that this Court had not divested itself of its jurisdiction to deal with the award or matters arising out of the award. In fact the indications are to the contrary. The direction in the order dated 29-1-1971 is that the arbitrator is `to make his award. Surely the law contemplates further steps to be taken after the award has been made, and quite naturally the forum for taking the further action is only this Court. There was also direction to the effect that the parties are at liberty to apply for extension of time for making the award. In the absence of any other court having been invested with such jurisdiction by the order, the only conclusion that is possible is that such a request must be made only to the court which passed that order, namely, this Court. 16) Unlike in the present case where an application was filed before the Delhi High Court seeking declaration that appointment of Mr. Justice Deshpande as Arbitrator is valid. The same application became in fructuous because of the demise of Mr. Justice Deshpande and had to be dismissed as having become infructuous. The Delhi High Court neither gave any directions nor did it appoint an Arbitrator in the adjudication of the said application. 17) In Bharat Coking Coal Ltd. v. Annapurna Construction, (2008) 6 SCC 732 , this court observed that a distinction must be borne in mind in a case where this Court had no control over the proceedings and the case in which control of proceedings of the arbitrator had been retained.18) Therefore, in the view taken by this Court in Bharat Cooking case, although an application was filed before the Delhi High Court, but it did not retain any control over the said proceedings of the arbitrator. Also respondent did not file any application regarding appointment of another arbitrator in the Delhi High Court. Thus, the application filed before the Delhi High Court cannot be said to a reference made under Section 31(4) of the Act.
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13) The main object of Section 31 of the Arbitration Act is to invest a single court with the exclusive jurisdiction to decide all questions relating to the matter of arbitration; this object is achieved by the combined operation of all its sub-sections. The words "application in a reference" used in sub-section (4) should therefore, be related back to sub-sections (2) and (3) and all applications regarding the conduct of arbitration proceedings or arising out of such proceedings or in which the court has to decide questions regarding the validity, effect, or existence of an award or an arbitration agreement between the parties to the agreement, should be treated as "application in athe absence of any other court having been invested with such jurisdiction by the order, the only conclusion that is possible is that such a request must be made only to the court which passed that order, namely, thisIn Bharat Coking Coal Ltd. v. Annapurna Construction, (2008) 6 SCC 732 , this court observed that a distinction must be borne in mind in a case where this Court had no control over the proceedings and the case in which control of proceedings of the arbitrator had been retained.18) Therefore, in the view taken by this Court in Bharat Cooking case, although an application was filed before the Delhi High Court, but it did not retain any control over the said proceedings of the arbitrator. Also respondent did not file any application regarding appointment of another arbitrator in the Delhi High Court. Thus, the application filed before the Delhi High Court cannot be said to a reference made under Section 31(4) of the Act.
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M/S. Alopi Parshad & Sons, Ltd Vs. The Union Of India | District Cinemas Ltd., 1951-1 KB 190 at p. 201. In that case, Denning, L. J., is reported to have observed:.......no matter that a contract is framed in words which taken literally or absolutely, covered what has happened, nevertheless, if the ensuing turn of events was so completely outside the contemplation of the parties that the court is satisfied that the parties, as reasonable people, cannot have intended that the contract should apply to the new situation, then the court will read the words of the contract in a qualified sense; it will restrict them to the circumstances contemplated by the parties; it will not apply them to the uncontemplated turn of events, but will do therein what is just and reasonable."But the observations made by Denning L. J., upon which reliance has been placed, proceeded substantially upon misapprehension of what was decided in Parkinson and Co. Ltd. v. Commissioners of Works, 1949-2 KB 632, on which the learned Lord Justice placed considerable reliance.The view taken by him was negatived in appeal to the House of Lords in the British Movietonews case - (1952) A. C. 166 - already referred to. In India, in the codified law of contracts, there is nothing which justifies the view that a change of circumstances, "completely outside the contemplation of parties" at the time when the contract was entered into, will justify a court, while holding the parties bound by the contract,in departing from the express terms thereof, 1949-2 KB 632 was a case in which on the true interpretation of a contract, it was held, though it was not so expressly provided, that the profits of a private contractor, who had entered into a contract with the Commissioners of Works to make certain building constructions and such other additional constructions as may be demanded by the latter, were restricted to a fixed amount only if the additional quantity of work did not substantially exceed in value a specified sum. The Court in that case held that a term must be implied in the contract that the Commissioners should not be entitled to require work materially in excess of the specified sum. In that case, the Court did not proceed upon any such general principle as was assumed by Denning L. J., in 1951-1 KB 190.23. We are, therefore, unable to agree with the contention of Mr. Chatterjee that the arbitrators were justified in ignoring the express terms of the contract prescribing remuneration payable to the Agents, and in proceeding upon the basis of quantum meruit.24. Relying upon S. 222 of the Indian Contract Act, by which duty to indemnify the agent against the consequences of all lawful acts done in exercise of the authority conferred, is imposed upon the employer, the arbitrators could not award compensation to the Agents in excess of the expressly stipulated consideration. The claim made by the Agents was not for indemnity for consequences of acts lawfully done by them on behalf of the Government of India; it was a claim for charges incurred by them in excess of those stipulated. Such a claim was not a claim for indemnity, but a claim for enhancement of the rate of the agreed consideration. Assuming that the Agents relied upon assurances alleged to be given by the Director in-charge of Purchases, in the absence of an express covenant modifying the contract which governed the relations of the Agents with the Government of India, vague assurances could not modify the contract. Ghee having been supplied by the Agents under the terms of the contract, the right of the Agents was to receive remuneration under the terms of that contract. It is difficult to appreciate the argument advanced by Mr. Chatterjee that the Agents were entitled to claim remuneration at rates substantially different from the terms stipulated, on the basis of quantum meruit.Compensation quantum meruit is awarded for work done or services rendered, when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract. Compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf. Quantum meruit is but reasonable compensation awarded on implication of a contract to remunerate, and an express stipulation governing the relations between the parties under a contract, cannot be displaced by assuming that the stipulation is not reasonable.It is, therefore, unnecessary to consider the argument advanced by Mr. Chatterjee that a claim for compensation on the basis of quantum meruit, is one which arises out of the agreement within the meaning of cl. 20. Granting that a claim for compensation on the basis of quantum meruit may be adjudicated upon by the arbitrators in a reference made under cl. 20 of the agreement, in the circumstances of the case before us, compensation on that basis could not be claimed.25. The plea that there was a bar of res judicata by reason of the decision in the Letters Patent Appeal No. 31 of 1953, has, in our judgment, no force. The Subordinate Judge set aside the award on the ground that there had been judicial misconduct committed by the umpire and also on the view that the claims made, as described in Schedules B and D, were not outside the competence of the arbitrators. The High Court in appeal under the Letters Patent, did confirm the order, setting aside the award; but there was no binding decision between the parties that the claim described in Sch. B, that is, the claim for establishment and contingency charges, was within the competence of the arbitrators in reference under cl. 20. It may be observed that according to the High Court of East Punjab in the Appeal No. 31 of 1953, under the Letters Patent, it was not necessary to express any opinion whether the claim in Sch. C was within the competence of the arbitrators, and the claims described in Sch. D does not appear to have been agitated in the second arbitration proceeding. | 0[ds]16. The extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award isThere is no foundation for the view that a specific reference, submitting a question of law for the adjudication of the arbitrators, was made.18. We agree, therefore, with the view of the High Court that the reference made, was a general reference and not a specific reference on any question of law. The award may, therefore, be set aside if it be demonstrated to be erroneous on the face ofthat the Agents had incurred this additional expenditure under the head `establishment and contingencies, when the contract expressly stipulated for payment of charges at rates specified therein, we fail to appreciate, on what ground, the arbitrators could ignore the express covenants between the parties, and award to the Agents amounts which the Union of India had not agreed to pay to the Agents. The award of the arbitrators, awarding additional expenses under the head of establishment and contingencies, together with interest thereon, is on the face of itinto consideration the face that the other persons were buying ghee at rates considerably in excess of the stipulated rates, the arbitrators held that the Agents were entitled to be reimbursed to the extent of Rs. 11,27,965-11-3. But the terms of the contract, stipulating the rate at which the financing and overhead charges were to be paid under cl. 13(a) read with cl. 12(b), remained binding so long as the contract was not abandoned or altered by mutual agreement, and the arbitrators had no authority to award any amount in excess of the amount expressly stipulated to beargument is untrue in fact and unsupportable in law. The contract was modified on June 20, 1942, by mutual consent, and the modification was made nearly three years after the commencement of the hostilities. The Agents were fully aware of the altered circumstances at the date when the modified schedule for payment of overhead charges, contingencies and buying remuneration, was agreed upon.Again, a contract is not frustrated merely because the circumstances in which the contract was made, are altered.There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract, merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous. That is the law both in India and in England, and there is, in our opinion, no general rule to which recourse may be had as contended by Mr. Chatterjee, relying upon which a party may ignore the express covenants on account of an uncontemplated turn of events since the date of the contract.We are, therefore, unable to agree with the contention of Mr. Chatterjee that the arbitrators were justified in ignoring the express terms of the contract prescribing remuneration payable to the Agents, and in proceeding upon the basis of quantumis difficult to appreciate the argument advanced by Mr. Chatterjee that the Agents were entitled to claim remuneration at rates substantially different from the terms stipulated, on the basis of quantum meruit.Compensation quantum meruit is awarded for work done or services rendered, when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract. Compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf. Quantum meruit is but reasonable compensation awarded on implication of a contract to remunerate, and an express stipulation governing the relations between the parties under a contract, cannot be displaced by assuming that the stipulation is not reasonable.It is, therefore, unnecessary to consider the argument advanced by Mr. Chatterjee that a claim for compensation on the basis of quantum meruit, is one which arises out of the agreement within the meaning of cl. 20. Granting that a claim for compensation on the basis of quantum meruit may be adjudicated upon by the arbitrators in a reference made under cl. 20 of the agreement, in the circumstances of the case before us, compensation on that basis could not be claimed.25. The plea that there was a bar of res judicata by reason of the decision in the Letters Patent Appeal No. 31 of 1953, has, in our judgment, no force. The Subordinate Judge set aside the award on the ground that there had been judicial misconduct committed by the umpire and also on the view that the claims made, as described in Schedules B and D, were not outside the competence of the arbitrators. The High Court in appeal under the Letters Patent, did confirm the order, setting aside the award; but there was no binding decision between the parties that the claim described in Sch. B, that is, the claim for establishment and contingency charges, was within the competence of the arbitrators in reference under cl. 20. It may be observed that according to the High Court of East Punjab in the Appeal No. 31 of 1953, under the Letters Patent, it was not necessary to express any opinion whether the claim in Sch. C was within the competence of the arbitrators, and the claims described in Sch. D does not appear to have been agitated in the second arbitration proceeding. | 0 | 5,849 | 978 | ### Instruction:
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District Cinemas Ltd., 1951-1 KB 190 at p. 201. In that case, Denning, L. J., is reported to have observed:.......no matter that a contract is framed in words which taken literally or absolutely, covered what has happened, nevertheless, if the ensuing turn of events was so completely outside the contemplation of the parties that the court is satisfied that the parties, as reasonable people, cannot have intended that the contract should apply to the new situation, then the court will read the words of the contract in a qualified sense; it will restrict them to the circumstances contemplated by the parties; it will not apply them to the uncontemplated turn of events, but will do therein what is just and reasonable."But the observations made by Denning L. J., upon which reliance has been placed, proceeded substantially upon misapprehension of what was decided in Parkinson and Co. Ltd. v. Commissioners of Works, 1949-2 KB 632, on which the learned Lord Justice placed considerable reliance.The view taken by him was negatived in appeal to the House of Lords in the British Movietonews case - (1952) A. C. 166 - already referred to. In India, in the codified law of contracts, there is nothing which justifies the view that a change of circumstances, "completely outside the contemplation of parties" at the time when the contract was entered into, will justify a court, while holding the parties bound by the contract,in departing from the express terms thereof, 1949-2 KB 632 was a case in which on the true interpretation of a contract, it was held, though it was not so expressly provided, that the profits of a private contractor, who had entered into a contract with the Commissioners of Works to make certain building constructions and such other additional constructions as may be demanded by the latter, were restricted to a fixed amount only if the additional quantity of work did not substantially exceed in value a specified sum. The Court in that case held that a term must be implied in the contract that the Commissioners should not be entitled to require work materially in excess of the specified sum. In that case, the Court did not proceed upon any such general principle as was assumed by Denning L. J., in 1951-1 KB 190.23. We are, therefore, unable to agree with the contention of Mr. Chatterjee that the arbitrators were justified in ignoring the express terms of the contract prescribing remuneration payable to the Agents, and in proceeding upon the basis of quantum meruit.24. Relying upon S. 222 of the Indian Contract Act, by which duty to indemnify the agent against the consequences of all lawful acts done in exercise of the authority conferred, is imposed upon the employer, the arbitrators could not award compensation to the Agents in excess of the expressly stipulated consideration. The claim made by the Agents was not for indemnity for consequences of acts lawfully done by them on behalf of the Government of India; it was a claim for charges incurred by them in excess of those stipulated. Such a claim was not a claim for indemnity, but a claim for enhancement of the rate of the agreed consideration. Assuming that the Agents relied upon assurances alleged to be given by the Director in-charge of Purchases, in the absence of an express covenant modifying the contract which governed the relations of the Agents with the Government of India, vague assurances could not modify the contract. Ghee having been supplied by the Agents under the terms of the contract, the right of the Agents was to receive remuneration under the terms of that contract. It is difficult to appreciate the argument advanced by Mr. Chatterjee that the Agents were entitled to claim remuneration at rates substantially different from the terms stipulated, on the basis of quantum meruit.Compensation quantum meruit is awarded for work done or services rendered, when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract. Compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf. Quantum meruit is but reasonable compensation awarded on implication of a contract to remunerate, and an express stipulation governing the relations between the parties under a contract, cannot be displaced by assuming that the stipulation is not reasonable.It is, therefore, unnecessary to consider the argument advanced by Mr. Chatterjee that a claim for compensation on the basis of quantum meruit, is one which arises out of the agreement within the meaning of cl. 20. Granting that a claim for compensation on the basis of quantum meruit may be adjudicated upon by the arbitrators in a reference made under cl. 20 of the agreement, in the circumstances of the case before us, compensation on that basis could not be claimed.25. The plea that there was a bar of res judicata by reason of the decision in the Letters Patent Appeal No. 31 of 1953, has, in our judgment, no force. The Subordinate Judge set aside the award on the ground that there had been judicial misconduct committed by the umpire and also on the view that the claims made, as described in Schedules B and D, were not outside the competence of the arbitrators. The High Court in appeal under the Letters Patent, did confirm the order, setting aside the award; but there was no binding decision between the parties that the claim described in Sch. B, that is, the claim for establishment and contingency charges, was within the competence of the arbitrators in reference under cl. 20. It may be observed that according to the High Court of East Punjab in the Appeal No. 31 of 1953, under the Letters Patent, it was not necessary to express any opinion whether the claim in Sch. C was within the competence of the arbitrators, and the claims described in Sch. D does not appear to have been agitated in the second arbitration proceeding.
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16. The extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award isThere is no foundation for the view that a specific reference, submitting a question of law for the adjudication of the arbitrators, was made.18. We agree, therefore, with the view of the High Court that the reference made, was a general reference and not a specific reference on any question of law. The award may, therefore, be set aside if it be demonstrated to be erroneous on the face ofthat the Agents had incurred this additional expenditure under the head `establishment and contingencies, when the contract expressly stipulated for payment of charges at rates specified therein, we fail to appreciate, on what ground, the arbitrators could ignore the express covenants between the parties, and award to the Agents amounts which the Union of India had not agreed to pay to the Agents. The award of the arbitrators, awarding additional expenses under the head of establishment and contingencies, together with interest thereon, is on the face of itinto consideration the face that the other persons were buying ghee at rates considerably in excess of the stipulated rates, the arbitrators held that the Agents were entitled to be reimbursed to the extent of Rs. 11,27,965-11-3. But the terms of the contract, stipulating the rate at which the financing and overhead charges were to be paid under cl. 13(a) read with cl. 12(b), remained binding so long as the contract was not abandoned or altered by mutual agreement, and the arbitrators had no authority to award any amount in excess of the amount expressly stipulated to beargument is untrue in fact and unsupportable in law. The contract was modified on June 20, 1942, by mutual consent, and the modification was made nearly three years after the commencement of the hostilities. The Agents were fully aware of the altered circumstances at the date when the modified schedule for payment of overhead charges, contingencies and buying remuneration, was agreed upon.Again, a contract is not frustrated merely because the circumstances in which the contract was made, are altered.There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract, merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous. That is the law both in India and in England, and there is, in our opinion, no general rule to which recourse may be had as contended by Mr. Chatterjee, relying upon which a party may ignore the express covenants on account of an uncontemplated turn of events since the date of the contract.We are, therefore, unable to agree with the contention of Mr. Chatterjee that the arbitrators were justified in ignoring the express terms of the contract prescribing remuneration payable to the Agents, and in proceeding upon the basis of quantumis difficult to appreciate the argument advanced by Mr. Chatterjee that the Agents were entitled to claim remuneration at rates substantially different from the terms stipulated, on the basis of quantum meruit.Compensation quantum meruit is awarded for work done or services rendered, when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract. Compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf. Quantum meruit is but reasonable compensation awarded on implication of a contract to remunerate, and an express stipulation governing the relations between the parties under a contract, cannot be displaced by assuming that the stipulation is not reasonable.It is, therefore, unnecessary to consider the argument advanced by Mr. Chatterjee that a claim for compensation on the basis of quantum meruit, is one which arises out of the agreement within the meaning of cl. 20. Granting that a claim for compensation on the basis of quantum meruit may be adjudicated upon by the arbitrators in a reference made under cl. 20 of the agreement, in the circumstances of the case before us, compensation on that basis could not be claimed.25. The plea that there was a bar of res judicata by reason of the decision in the Letters Patent Appeal No. 31 of 1953, has, in our judgment, no force. The Subordinate Judge set aside the award on the ground that there had been judicial misconduct committed by the umpire and also on the view that the claims made, as described in Schedules B and D, were not outside the competence of the arbitrators. The High Court in appeal under the Letters Patent, did confirm the order, setting aside the award; but there was no binding decision between the parties that the claim described in Sch. B, that is, the claim for establishment and contingency charges, was within the competence of the arbitrators in reference under cl. 20. It may be observed that according to the High Court of East Punjab in the Appeal No. 31 of 1953, under the Letters Patent, it was not necessary to express any opinion whether the claim in Sch. C was within the competence of the arbitrators, and the claims described in Sch. D does not appear to have been agitated in the second arbitration proceeding.
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Shibsankar Nandy Vs. Prabartak Sangha And Ors | urge, as it was purely a question as to the constitutional validity of Section 24. The contention was that the right of transfer enacted in that section was founded solely on the consideration of vicinage and therefore constituted an unreasonable restriction on the guaranteed right of respondents 2 and 3 and the appellant under Art. 19 (1) (f) of the Constitution. In this connection he relied upon Bhau Ram v. Baijnath Singh, (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) where by a majority judgment this Court struck down Section 10 of the Rewa State Pre-emption Act, 1946. That section provided for pre-emption on the ground of vicinage and it was held that such a restriction on the right of the vendor to sell his property to a purchaser of his choice at a price settled between them was unreasonable. It was observed that besides there being no advantage to the general public from such a law, the real reason behind a law of pre-emption on the basis of vicinage was to prevent stranger, i. e., people belonging to different religion, race or caste, from acquiring property in any area populated by a particular fraternity or class of people. Such a proviso could not be considered reasonable in view of the prohibition under Art. 15 of the Constitution of discrimination only on the ground of religion, race, caste, etc. It may however be observed that the Court in that decision considered certain provisions of the Punjab Pre-emption Act, 1913 and Berar Land Revenue Code, 1928 also and refused to strike down certain provisions of those Acts where apart from vicinage there were other factors on the consideration of which the right of pre-emption was enacted. The decision therefore is an authority only for the proposition that where such a restriction is laid down exclusively on the ground of vicinage it might be liable to be struck down as an unreasonable restriction. This is illustrated by Ram Sarup v. Munshi, (1963) 3 SCR 858 : (AIR 1963 SC 553 ) where Section 15 (a) of the Punjab Pre-emption Act, 1913, as amended by Act 10 of 1960 was held valid on the ground that the restriction on the right of free alienation imposed by that provision was intended to preserve the integrity of the village and the village community and to implement the agnatic rule of succession and that both of them were reasonable and calculated to further the interests of the general public. 12. An examination of the different provisions of the Act and its scheme shows that contiguity is not the sole consideration for which Section 24 was enacted. Chapter III of the Act deals with tenants and confers on them diverse rights. Section 6 permits a tenant holding non-agricultural land to erect pucca structures, to dig a tank and to fell, utilise or dispose of the timber of any trees planted by such a tenant. Under Section 7 if the tenancy was created before the commencement of the Transfer of Property Act or its origin is unknown or if created after the commencement of that Act but the land is held thereunder for a period of 12 years or more or where the tenancy is for a shorter term but the tenant has continued to hold the land with the express or implied consent of the landlord and the period in the aggregate is not less than twelve years such a tenant cannot be ejected except only on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy. Under that section the interests of such a tenant are made heritable and are capable of being transferred or bequeathed in the same manner and to the extent as the other immovable property of the tenant. Where any non-agricultural land is held under a lease in writing for a period of not less than 12 years Section 8 confers on the tenant on the expiry of such period the option of successive renewals of such lease on fair and reasonable conditions as to rent as may be agreed upon between the parties or decided by the court in the absence of such agreement. It further provides that such a tenant cannot be ejected either during the term provided by the lease or during its renewal except on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of such tenancy. Chapter IV of the Act in like manner confers substantial rights on under-tenants. It is only when a non-agricultural tenant transfers his rights in the leased land to a third party that the provisions of Sections 23 and 24 are attracted and in such an eventuality the immediate landlord who has interest in such land and has contiguous land in his actual possession is given the right to apply for the transfer of such land in his favour provided that the court is satisfied that such land is required for any of the purposes set out in Section 4. 13. The scheme of the Act clearly is to afford security of tenure to tenants and under-tenants even to the extent of making their rights transferable and heritable. It is only when such land is sought to be transferred that the immediate landlord is given the right to have it transferred to himself instead of to a third party. These provisions clearly reflect the true object of the legislature in enacting Section 24. That object is to have an adjustment of rights of landlords and tenants. The consideration of the land being contiguous is therefore not the sole consideration as in the case of (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) (Supra).The restriction contained in Section 24 cannot by any means be treated as an unreasonable restriction. Consequently the contention as to the constitutional invalidity of Section 24 cannot be accepted | 0[ds]In view of the clear finding by the Additional District Judge it can no longer be disputed that the land in question is contiguous to the land in actual possession of the 1st respondent Association. There is also no reason why the finding of the High Court that the land is bona fide required by the 1st respondent Association for expansion of its educational institution should be disturbed. The Trial Court held that it was bona fide required by the 1st respondent and though the Additional District Judge did not expressly give any finding it appears as the High Court has stated that that fact was not challenged before him. The proviso to S. 24, however, requires that though such land may be needed bona fide the use for which it is needed must be for any of the purposes set out in S. 4. Since the land is not required for a hostel or residential purpose of the 1st respondent or its employees it cannot fall under Cl.(a) but the case would seem to fall under Cl. (b) and in any event under Cl. (c). As aforesaid, the objects of the 1st respondent are inter alia to promote education, arts, etc., by utilising, improving and developing properties and business. Since the case of the 1st respondent is that it requires the land in question for expansion of its educational activities, the land in dispute is required for its business purposes, viz., to develop, improve its properties or in any event for the "other purposes", viz., to carry out its educational objects for which the land in its actual possession is being utilised. There is, therefore, no difficulty in holding that Cl. (b) of the proviso is satisfiedIt is true that by reason of the perpetual lease in favour of respondents 2 and 3 in respect of the land in dispute the first respondent Association had only the right of receiving rent from them but that makes no difference to the position that the first respondent was the immediate landlord of respondents 2 and 3 in regard to the land in question. Therefore there can be no doubt that both section 23 and Section 24 were attracted to the transfer made by respondents 2 and 3 and under Section 24 the first respondent as their immediate landlord became entitled to apply for transferThis contention also cannot be accepted, for an "intermediary" as defined in S. 2 (1) (i) of that Act means "a proprietor, tenure-holder, under-tenure holder, or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee". It is thus obvious that the 1st respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State or that therefore it was not entitled to apply under Section 24The scheme of the Act clearly is to afford security of tenure to tenants and under-tenants even to the extent of making their rights transferable and heritable. It is only when such land is sought to be transferred that the immediate landlord is given the right to have it transferred to himself instead of to a third party. These provisions clearly reflect the true object of the legislature in enacting Section 24. That object is to have an adjustment of rights of landlords and tenants. The consideration of the land being contiguous is therefore not the sole consideration as in the case of (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) (Supra).The restriction contained in Section 24 cannot by any means be treated as an unreasonable restriction. Consequently the contention as to the constitutional invalidity of Section 24 cannot be accepted | 0 | 3,568 | 722 | ### Instruction:
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urge, as it was purely a question as to the constitutional validity of Section 24. The contention was that the right of transfer enacted in that section was founded solely on the consideration of vicinage and therefore constituted an unreasonable restriction on the guaranteed right of respondents 2 and 3 and the appellant under Art. 19 (1) (f) of the Constitution. In this connection he relied upon Bhau Ram v. Baijnath Singh, (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) where by a majority judgment this Court struck down Section 10 of the Rewa State Pre-emption Act, 1946. That section provided for pre-emption on the ground of vicinage and it was held that such a restriction on the right of the vendor to sell his property to a purchaser of his choice at a price settled between them was unreasonable. It was observed that besides there being no advantage to the general public from such a law, the real reason behind a law of pre-emption on the basis of vicinage was to prevent stranger, i. e., people belonging to different religion, race or caste, from acquiring property in any area populated by a particular fraternity or class of people. Such a proviso could not be considered reasonable in view of the prohibition under Art. 15 of the Constitution of discrimination only on the ground of religion, race, caste, etc. It may however be observed that the Court in that decision considered certain provisions of the Punjab Pre-emption Act, 1913 and Berar Land Revenue Code, 1928 also and refused to strike down certain provisions of those Acts where apart from vicinage there were other factors on the consideration of which the right of pre-emption was enacted. The decision therefore is an authority only for the proposition that where such a restriction is laid down exclusively on the ground of vicinage it might be liable to be struck down as an unreasonable restriction. This is illustrated by Ram Sarup v. Munshi, (1963) 3 SCR 858 : (AIR 1963 SC 553 ) where Section 15 (a) of the Punjab Pre-emption Act, 1913, as amended by Act 10 of 1960 was held valid on the ground that the restriction on the right of free alienation imposed by that provision was intended to preserve the integrity of the village and the village community and to implement the agnatic rule of succession and that both of them were reasonable and calculated to further the interests of the general public. 12. An examination of the different provisions of the Act and its scheme shows that contiguity is not the sole consideration for which Section 24 was enacted. Chapter III of the Act deals with tenants and confers on them diverse rights. Section 6 permits a tenant holding non-agricultural land to erect pucca structures, to dig a tank and to fell, utilise or dispose of the timber of any trees planted by such a tenant. Under Section 7 if the tenancy was created before the commencement of the Transfer of Property Act or its origin is unknown or if created after the commencement of that Act but the land is held thereunder for a period of 12 years or more or where the tenancy is for a shorter term but the tenant has continued to hold the land with the express or implied consent of the landlord and the period in the aggregate is not less than twelve years such a tenant cannot be ejected except only on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy. Under that section the interests of such a tenant are made heritable and are capable of being transferred or bequeathed in the same manner and to the extent as the other immovable property of the tenant. Where any non-agricultural land is held under a lease in writing for a period of not less than 12 years Section 8 confers on the tenant on the expiry of such period the option of successive renewals of such lease on fair and reasonable conditions as to rent as may be agreed upon between the parties or decided by the court in the absence of such agreement. It further provides that such a tenant cannot be ejected either during the term provided by the lease or during its renewal except on the solitary ground that he has used such land in a manner which renders it unfit for use for the purposes of such tenancy. Chapter IV of the Act in like manner confers substantial rights on under-tenants. It is only when a non-agricultural tenant transfers his rights in the leased land to a third party that the provisions of Sections 23 and 24 are attracted and in such an eventuality the immediate landlord who has interest in such land and has contiguous land in his actual possession is given the right to apply for the transfer of such land in his favour provided that the court is satisfied that such land is required for any of the purposes set out in Section 4. 13. The scheme of the Act clearly is to afford security of tenure to tenants and under-tenants even to the extent of making their rights transferable and heritable. It is only when such land is sought to be transferred that the immediate landlord is given the right to have it transferred to himself instead of to a third party. These provisions clearly reflect the true object of the legislature in enacting Section 24. That object is to have an adjustment of rights of landlords and tenants. The consideration of the land being contiguous is therefore not the sole consideration as in the case of (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) (Supra).The restriction contained in Section 24 cannot by any means be treated as an unreasonable restriction. Consequently the contention as to the constitutional invalidity of Section 24 cannot be accepted
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In view of the clear finding by the Additional District Judge it can no longer be disputed that the land in question is contiguous to the land in actual possession of the 1st respondent Association. There is also no reason why the finding of the High Court that the land is bona fide required by the 1st respondent Association for expansion of its educational institution should be disturbed. The Trial Court held that it was bona fide required by the 1st respondent and though the Additional District Judge did not expressly give any finding it appears as the High Court has stated that that fact was not challenged before him. The proviso to S. 24, however, requires that though such land may be needed bona fide the use for which it is needed must be for any of the purposes set out in S. 4. Since the land is not required for a hostel or residential purpose of the 1st respondent or its employees it cannot fall under Cl.(a) but the case would seem to fall under Cl. (b) and in any event under Cl. (c). As aforesaid, the objects of the 1st respondent are inter alia to promote education, arts, etc., by utilising, improving and developing properties and business. Since the case of the 1st respondent is that it requires the land in question for expansion of its educational activities, the land in dispute is required for its business purposes, viz., to develop, improve its properties or in any event for the "other purposes", viz., to carry out its educational objects for which the land in its actual possession is being utilised. There is, therefore, no difficulty in holding that Cl. (b) of the proviso is satisfiedIt is true that by reason of the perpetual lease in favour of respondents 2 and 3 in respect of the land in dispute the first respondent Association had only the right of receiving rent from them but that makes no difference to the position that the first respondent was the immediate landlord of respondents 2 and 3 in regard to the land in question. Therefore there can be no doubt that both section 23 and Section 24 were attracted to the transfer made by respondents 2 and 3 and under Section 24 the first respondent as their immediate landlord became entitled to apply for transferThis contention also cannot be accepted, for an "intermediary" as defined in S. 2 (1) (i) of that Act means "a proprietor, tenure-holder, under-tenure holder, or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee". It is thus obvious that the 1st respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State or that therefore it was not entitled to apply under Section 24The scheme of the Act clearly is to afford security of tenure to tenants and under-tenants even to the extent of making their rights transferable and heritable. It is only when such land is sought to be transferred that the immediate landlord is given the right to have it transferred to himself instead of to a third party. These provisions clearly reflect the true object of the legislature in enacting Section 24. That object is to have an adjustment of rights of landlords and tenants. The consideration of the land being contiguous is therefore not the sole consideration as in the case of (1962) Supp (3) SCR 724: (AIR 1961 SC 1327 ) (Supra).The restriction contained in Section 24 cannot by any means be treated as an unreasonable restriction. Consequently the contention as to the constitutional invalidity of Section 24 cannot be accepted
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UNIVERSITY OF DELHI Vs. UNION OF INDIA | apart, as rightly noticed by the Division Bench in the LPA, the approval from the Executive Council was obtained on 28.02.2017 / 07.03.2017, the appeal was ultimately filed on 01.03.2018 after an year from the said date which only indicates the casual approach which is now sought to be overcome with the plea of public interest despite there being no explanation for the delay at every stage. It is true that as held in the case of Mst. Katiji (supra) that every days delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary. The Division Bench apart from noticing these aspects had also noted that the learned Single Judge too found the writ petition to be hit by delay and laches. 24. In that backdrop, a perusal of the order dated 27.04.2015 passed by the learned Single Judge would indicate that the learned Single Judge in para – 65 of the order with reference to his earlier observation has arrived at the categorical conclusion that the petition suffers from laches and has been filed with delay of 7¬8 years. The learned Senior Counsel for the appellant while seeking to dispel such conclusion by the learned Single Judge contended that the respondent No. 13 themselves had filed a writ petition being aggrieved by the restricted FAR and the said writ petition was disposed only on 18.05.2011 and the need for the appellant herein to file the writ petition arose only thereafter. The said contention is also not acceptable if the entire sequence is noticed. 25. In that regard there can be no dispute to the fact that the Respondent No. 13 being aggrieved by the decision of DDA had filed a petition bearing W.P. No.3135/2010 assailing the letter dated 19.08.2009 and the same was disposed of only on 18.05.2011 but the appellant cannot take shelter under the same to explain the laches. This is because much water had flown under the bridge before the said development and those events ought to have triggered action from the appellant in challenging, more so when there were other litigations relating to the same subject, as noticed in the order of the learned Single Judge. 26. In the present matter, the land was converted to residential use in 2005 and Respondent No.11 – DMRC had invited bids and public auction was conducted on 28.07.2008 which ought to have awakened the appellant herein for the first time since the fact of conversion of the land into residential development was in public domain even if is assumed that the earlier process of approval etc. by the DDA on the approval request of DMRC are internal process and not be known to the appellant. In fact, the learned Single Judge while taking note of the challenge raised by the appellant herein has also taken note of an earlier petition bearing W.P (C) No.8675/2011 filed by the Association of Metro Commuters wherein also the residential development was an issue, which came to be dismissed by order dated 14.02.2011. Similarly, another petition in W.P(C) No.6624¬6625/2012, though challenging the acquisition was filed, the same was also dismissed. Thereafter the writ petition of the appellant filed in the year 2012 was pending till it was disposed on 27.04.2015. 27. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court. 28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 – DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest. 29. Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference. | 0[ds]20. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even¬ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating sufficient cause to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent21. As against the same, the delay in the instant facts in filing the LPA is 916 days and as such the consideration to condone can be made only if there is reasonable explanation and the condonation cannot be merely because the appellant is public body. The entire explanation noticed above, depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. In addition in the instant facts not only the delay and laches in filing the appeal is contended on behalf of the respondents seeking dismissal of the instant appeal but it is also contended that there was delay and laches in filing the writ petition itself at the first instance from which the present appeal had arisen. In that view, it would be necessary for us to advert to those aspects of the matter and notice the nature of consideration made in the writ petition as well as the LPA to arrive at a conclusion as to whether the High Court was justified22. The entire explanation for the inordinate delay of 916 days is twofold, i.e. the non-availability of the ViceChancellor due to retirement and subsequent appointment of new Vice¬Chancellor, also that the matter was placed before the Executive Council and a decision was taken to file the appeal and the said process had caused the delay. The reasons as stated do not appear very convincing since the situation was of availing the appellate remedy and not the original proceedings requiring such deliberation when it was a mere continuation of the proceedings which had already been filed on behalf of the appellant herein, after due deliberation. Significantly, the Vice¬Chancellor who was at the helm of affairs when the writ petition was filed, prosecuted and disposed of on 27.04.2015 was available in the same office till 28.10.2015, for about six months which was a long enough period as compared to 30 days limitation period for filing appeal. In that circumstance when the said Vice-Chancellor who had prosecuted the writ petition was available, the submission of the learned Senior Counsel for the appellant that unseen hands are likely to have prevented the filing of the appeal also cannot be accepted. Secondly, the reason sought to be put forth about the decision required to be taken by the Executive Council is also not acceptable when it was just the matter of filing the appeal. In fact, in the writ petition an affidavit was filed referring to Resolution No.56 and 173 of Academic Council and Executive Council authorising for filing writ petition. When the writ petition was filed based on such authorisation and the stand of the appellant, as the writ petitioner was put forth and had failed in the writ petition, it cannot be accepted that the appellant with all the wherewithal was unable to file the appeal, that too when the same Vice¬Chancellor was available for six months after dismissal of the writ petition. Hence the reasons put forth cannot in our opinion constitute sufficient cause23. That apart, as rightly noticed by the Division Bench in the LPA, the approval from the Executive Council was obtained on 28.02.2017 / 07.03.2017, the appeal was ultimately filed on 01.03.2018 after an year from the said date which only indicates the casual approach which is now sought to be overcome with the plea of public interest despite there being no explanation for the delay at every stage. It is true that as held in the case of Mst. Katiji (supra) that every days delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary. The Division Bench apart from noticing these aspects had also noted that the learned Single Judge too found the writ petition to be hit by delay and laches24. In that backdrop, a perusal of the order dated 27.04.2015 passed by the learned Single Judge would indicate that the learned Single Judge in para – 65 of the order with reference to his earlier observation has arrived at the categorical conclusion that the petition suffers from laches and has been filed with delay of 7¬8 years. The learned Senior Counsel for the appellant while seeking to dispel such conclusion by the learned Single Judge contended that the respondent No. 13 themselves had filed a writ petition being aggrieved by the restricted FAR and the said writ petition was disposed only on 18.05.2011 and the need for the appellant herein to file the writ petition arose only thereafter. The said contention is also not acceptable if the entire sequence is noticed25. In that regard there can be no dispute to the fact that the Respondent No. 13 being aggrieved by the decision of DDA had filed a petition bearing W.P. No.3135/2010 assailing the letter dated 19.08.2009 and the same was disposed of only on 18.05.2011 but the appellant cannot take shelter under the same to explain the laches. This is because much water had flown under the bridge before the said development and those events ought to have triggered action from the appellant in challenging, more so when there were other litigations relating to the same subject, as noticed in the order of the learned Single Judge26. In the present matter, the land was converted to residential use in 2005 and Respondent No.11 – DMRC had invited bids and public auction was conducted on 28.07.2008 which ought to have awakened the appellant herein for the first time since the fact of conversion of the land into residential development was in public domain even if is assumed that the earlier process of approval etc. by the DDA on the approval request of DMRC are internal process and not be known to the appellant. In fact, the learned Single Judge while taking note of the challenge raised by the appellant herein has also taken note of an earlier petition bearing W.P (C) No.8675/2011 filed by the Association of Metro Commuters wherein also the residential development was an issue, which came to be dismissed by order dated 14.02.2011. Similarly, another petition in W.P(C) No.6624¬6625/2012, though challenging the acquisition was filed, the same was also dismissed. Thereafter the writ petition of the appellant filed in the year 2012 was pending till it was disposed on 27.04.201527. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 – DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest29. Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference. | 0 | 6,737 | 1,895 | ### Instruction:
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apart, as rightly noticed by the Division Bench in the LPA, the approval from the Executive Council was obtained on 28.02.2017 / 07.03.2017, the appeal was ultimately filed on 01.03.2018 after an year from the said date which only indicates the casual approach which is now sought to be overcome with the plea of public interest despite there being no explanation for the delay at every stage. It is true that as held in the case of Mst. Katiji (supra) that every days delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary. The Division Bench apart from noticing these aspects had also noted that the learned Single Judge too found the writ petition to be hit by delay and laches. 24. In that backdrop, a perusal of the order dated 27.04.2015 passed by the learned Single Judge would indicate that the learned Single Judge in para – 65 of the order with reference to his earlier observation has arrived at the categorical conclusion that the petition suffers from laches and has been filed with delay of 7¬8 years. The learned Senior Counsel for the appellant while seeking to dispel such conclusion by the learned Single Judge contended that the respondent No. 13 themselves had filed a writ petition being aggrieved by the restricted FAR and the said writ petition was disposed only on 18.05.2011 and the need for the appellant herein to file the writ petition arose only thereafter. The said contention is also not acceptable if the entire sequence is noticed. 25. In that regard there can be no dispute to the fact that the Respondent No. 13 being aggrieved by the decision of DDA had filed a petition bearing W.P. No.3135/2010 assailing the letter dated 19.08.2009 and the same was disposed of only on 18.05.2011 but the appellant cannot take shelter under the same to explain the laches. This is because much water had flown under the bridge before the said development and those events ought to have triggered action from the appellant in challenging, more so when there were other litigations relating to the same subject, as noticed in the order of the learned Single Judge. 26. In the present matter, the land was converted to residential use in 2005 and Respondent No.11 – DMRC had invited bids and public auction was conducted on 28.07.2008 which ought to have awakened the appellant herein for the first time since the fact of conversion of the land into residential development was in public domain even if is assumed that the earlier process of approval etc. by the DDA on the approval request of DMRC are internal process and not be known to the appellant. In fact, the learned Single Judge while taking note of the challenge raised by the appellant herein has also taken note of an earlier petition bearing W.P (C) No.8675/2011 filed by the Association of Metro Commuters wherein also the residential development was an issue, which came to be dismissed by order dated 14.02.2011. Similarly, another petition in W.P(C) No.6624¬6625/2012, though challenging the acquisition was filed, the same was also dismissed. Thereafter the writ petition of the appellant filed in the year 2012 was pending till it was disposed on 27.04.2015. 27. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court. 28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 – DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest. 29. Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference.
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our opinion constitute sufficient cause23. That apart, as rightly noticed by the Division Bench in the LPA, the approval from the Executive Council was obtained on 28.02.2017 / 07.03.2017, the appeal was ultimately filed on 01.03.2018 after an year from the said date which only indicates the casual approach which is now sought to be overcome with the plea of public interest despite there being no explanation for the delay at every stage. It is true that as held in the case of Mst. Katiji (supra) that every days delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary. The Division Bench apart from noticing these aspects had also noted that the learned Single Judge too found the writ petition to be hit by delay and laches24. In that backdrop, a perusal of the order dated 27.04.2015 passed by the learned Single Judge would indicate that the learned Single Judge in para – 65 of the order with reference to his earlier observation has arrived at the categorical conclusion that the petition suffers from laches and has been filed with delay of 7¬8 years. The learned Senior Counsel for the appellant while seeking to dispel such conclusion by the learned Single Judge contended that the respondent No. 13 themselves had filed a writ petition being aggrieved by the restricted FAR and the said writ petition was disposed only on 18.05.2011 and the need for the appellant herein to file the writ petition arose only thereafter. The said contention is also not acceptable if the entire sequence is noticed25. In that regard there can be no dispute to the fact that the Respondent No. 13 being aggrieved by the decision of DDA had filed a petition bearing W.P. No.3135/2010 assailing the letter dated 19.08.2009 and the same was disposed of only on 18.05.2011 but the appellant cannot take shelter under the same to explain the laches. This is because much water had flown under the bridge before the said development and those events ought to have triggered action from the appellant in challenging, more so when there were other litigations relating to the same subject, as noticed in the order of the learned Single Judge26. In the present matter, the land was converted to residential use in 2005 and Respondent No.11 – DMRC had invited bids and public auction was conducted on 28.07.2008 which ought to have awakened the appellant herein for the first time since the fact of conversion of the land into residential development was in public domain even if is assumed that the earlier process of approval etc. by the DDA on the approval request of DMRC are internal process and not be known to the appellant. In fact, the learned Single Judge while taking note of the challenge raised by the appellant herein has also taken note of an earlier petition bearing W.P (C) No.8675/2011 filed by the Association of Metro Commuters wherein also the residential development was an issue, which came to be dismissed by order dated 14.02.2011. Similarly, another petition in W.P(C) No.6624¬6625/2012, though challenging the acquisition was filed, the same was also dismissed. Thereafter the writ petition of the appellant filed in the year 2012 was pending till it was disposed on 27.04.201527. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 – DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest29. Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference.
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M/s Mysore Minerals Limited, M.G. Road, Bangalore Vs. The Commissioners of Income Tax, Karnataka, Bangalore | owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." Podar Cements case (supra) is under the Income-tax Act and has to be taken as trend-setter on the concept of ownership. Assistance from the law laid down therein can be taken for finding out meaning of the term `owned as occurring in Sec. 32(1) of the Act. 11. In our opinion, the term owned as occurring in Sec. 32(1) of the Income-tax Act, 1961 must be assigned a wider meaning. Any one in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the own of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act etc. `Building owned by the assessee - the expression as occurring in Section 32(1) of the Income-tax Act means the person who having acquired possession over the building in his own rights uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirement of laws such as Transfer of Property Act and Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of all others. 12. Generally speaking depreciation is an allowance for the diminution in the value due to wear and tear of capital asset employed by an assessee in his business. Blacks Law Dictionary (Fifth Edn.) defines depreciation to mean, inter alia : "A fall in value; reduction of worth. The deterioration, or the loss or lessening in value, arising from age, use, and improvements, due to better methods. A decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects of useful life of property.......... Consistent, gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost against earnings......." 13. Parks in Principles & Practice of Valuation (Fifth Edn., at page 323) states: As for building, depreciation is the measurement of wearing out through consumption, or use, or effluxion of time. Paton has in his Accounts Handbook (3rd Edn.) observed that depreciation is an out-of-pocket cost as any other costs. he has further observed-the depreciation charge is merely the periodic operating aspect of fixed asset costs. 14. In Badiani P.K. v. CIT, 1976(105) ITR 642 the Supreme court has observed that allowance for depreciation is to replace the value of an asset to the extent it has depreciated during the period of accounting relevant to the assessment year and as the value has, to that extent, been lost, the corresponding allowance for depreciation takes place. 15. An overall view of the above said authorities show that the very concept of depreciation suggests that the tax benefit on account of depreciation legitimately belongs to one who has invested in the capital asset, is utilizing the capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace the same by having lost its value fully over a period of time. 16. It is well-settled that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the Legislature in enacting Section 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for the time-being vests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not subserve the legislative intent. To take the case at hand it is the appellant-assessee who having paid part of the price, has been placed in possession of the houses as an owner and is using the buildings for the purpose of its business in its own right. Still the assessee has been denied the benefit of Section 32. On the other hand, the Housing Board would be denied the benefit of Section 32 because inspire of its being the legal owner it was not using the building for its business or profession. We do not think such a benefit - to - none situation could have been intended by the legislature. The finding of fact arrived at in the case at hand is that though a document of title was not executed by Housing Board in favour of the assessee, but the houses were allotted to the assessee by the Housing Board, part payment received and possession delivered so as to confer dominion over the property on the assessee whereafter the assessee had in its own right allotted the quarters to the staff and they were being actually used by the staff of the assessee. It is common knowledge, under the various schemes floated by bodies like housing boards, houses are constructed on large scale and allotted on part payment to those who have booked. Possession is also delivered to the allottee so as to enable enjoyment of the property. Execution of document transferring title necessarily follows if the schedule of payment is observed by allottee. If only the allotee may default the property may revert back to the Board. That is a matter only between the Housing Board and the allottee. No third person intervenes. The part payments made by allottee are with the intention of acquiring title. The delivery of possession by Housing Board to allottee is also a step towards conferring ownership. Documentation is delayed only with the idea of compelling the allottee to observe the schedule of payment. 17. | 1[ds]In our opinion, the term owned as occurring in Sec. 32(1) of theAct, 1961 must be assigned a wider meaning. Any one in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the own of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act etc. `Building owned by the assesseethe expression as occurring in Section 32(1) of theAct means the person who having acquired possession over the building in his own rights uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirement of laws such as Transfer of Property Act and Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of allspeaking depreciation is an allowance for the diminution in the value due to wear and tear of capital asset employed by an assessee in his business. Blacks Law Dictionary (Fifth Edn.) defines depreciation to mean, inter aliafall in value; reduction of worth. The deterioration, or the loss or lessening in value, arising from age, use, and improvements, due to better methods. A decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects of useful life of property.......... Consistent, gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost againstParks in Principles & Practice of Valuation (Fifth Edn., at page 323) states: As for building, depreciation is the measurement of wearing out through consumption, or use, or effluxion of time. Paton has in his Accounts Handbook (3rd Edn.) observed that depreciation is ancost as any other costs. he has furtherdepreciation charge is merely the periodic operating aspect of fixed assetoverall view of the above said authorities show that the very concept of depreciation suggests that the tax benefit on account of depreciation legitimately belongs to one who has invested in the capital asset, is utilizing the capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace the same by having lost its value fully over a period ofed that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the Legislature in enacting Section 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for thevests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not subserve the legislative intent. To take the case at hand it is thewho having paid part of the price, has been placed in possession of the houses as an owner and is using the buildings for the purpose of its business in its own right. Still the assessee has been denied the benefit of Section 32. On the other hand, the Housing Board would be denied the benefit of Section 32 because inspire of its being the legal owner it was not using the building for its business or profession. We do not think such a benefitnone situation could have been intended by the legislature. The finding of fact arrived at in the case at hand is that though a document of title was not executed by Housing Board in favour of the assessee, but the houses were allotted to the assessee by the Housing Board, part payment received and possession delivered so as to confer dominion over the property on the assessee whereafter the assessee had in its own right allotted the quarters to the staff and they were being actually used by the staff of the assessee. It is common knowledge, under the various schemes floated by bodies like housing boards, houses are constructed on large scale and allotted on part payment to those who have booked. Possession is also delivered to the allottee so as to enable enjoyment of the property. Execution of document transferring title necessarily follows if the schedule of payment is observed by allottee. If only the allotee may default the property may revert back to the Board. That is a matter only between the Housing Board and the allottee. No third person intervenes. The part payments made by allottee are with the intention of acquiring title. The delivery of possession by Housing Board to allottee is also a step towards conferring ownership. Documentation is delayed only with the idea of compelling the allottee to observe the schedule of payment. | 1 | 2,962 | 882 | ### 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:
owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." Podar Cements case (supra) is under the Income-tax Act and has to be taken as trend-setter on the concept of ownership. Assistance from the law laid down therein can be taken for finding out meaning of the term `owned as occurring in Sec. 32(1) of the Act. 11. In our opinion, the term owned as occurring in Sec. 32(1) of the Income-tax Act, 1961 must be assigned a wider meaning. Any one in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the own of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act etc. `Building owned by the assessee - the expression as occurring in Section 32(1) of the Income-tax Act means the person who having acquired possession over the building in his own rights uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirement of laws such as Transfer of Property Act and Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of all others. 12. Generally speaking depreciation is an allowance for the diminution in the value due to wear and tear of capital asset employed by an assessee in his business. Blacks Law Dictionary (Fifth Edn.) defines depreciation to mean, inter alia : "A fall in value; reduction of worth. The deterioration, or the loss or lessening in value, arising from age, use, and improvements, due to better methods. A decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects of useful life of property.......... Consistent, gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost against earnings......." 13. Parks in Principles & Practice of Valuation (Fifth Edn., at page 323) states: As for building, depreciation is the measurement of wearing out through consumption, or use, or effluxion of time. Paton has in his Accounts Handbook (3rd Edn.) observed that depreciation is an out-of-pocket cost as any other costs. he has further observed-the depreciation charge is merely the periodic operating aspect of fixed asset costs. 14. In Badiani P.K. v. CIT, 1976(105) ITR 642 the Supreme court has observed that allowance for depreciation is to replace the value of an asset to the extent it has depreciated during the period of accounting relevant to the assessment year and as the value has, to that extent, been lost, the corresponding allowance for depreciation takes place. 15. An overall view of the above said authorities show that the very concept of depreciation suggests that the tax benefit on account of depreciation legitimately belongs to one who has invested in the capital asset, is utilizing the capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace the same by having lost its value fully over a period of time. 16. It is well-settled that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the Legislature in enacting Section 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for the time-being vests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not subserve the legislative intent. To take the case at hand it is the appellant-assessee who having paid part of the price, has been placed in possession of the houses as an owner and is using the buildings for the purpose of its business in its own right. Still the assessee has been denied the benefit of Section 32. On the other hand, the Housing Board would be denied the benefit of Section 32 because inspire of its being the legal owner it was not using the building for its business or profession. We do not think such a benefit - to - none situation could have been intended by the legislature. The finding of fact arrived at in the case at hand is that though a document of title was not executed by Housing Board in favour of the assessee, but the houses were allotted to the assessee by the Housing Board, part payment received and possession delivered so as to confer dominion over the property on the assessee whereafter the assessee had in its own right allotted the quarters to the staff and they were being actually used by the staff of the assessee. It is common knowledge, under the various schemes floated by bodies like housing boards, houses are constructed on large scale and allotted on part payment to those who have booked. Possession is also delivered to the allottee so as to enable enjoyment of the property. Execution of document transferring title necessarily follows if the schedule of payment is observed by allottee. If only the allotee may default the property may revert back to the Board. That is a matter only between the Housing Board and the allottee. No third person intervenes. The part payments made by allottee are with the intention of acquiring title. The delivery of possession by Housing Board to allottee is also a step towards conferring ownership. Documentation is delayed only with the idea of compelling the allottee to observe the schedule of payment. 17.
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In our opinion, the term owned as occurring in Sec. 32(1) of theAct, 1961 must be assigned a wider meaning. Any one in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the own of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act etc. `Building owned by the assesseethe expression as occurring in Section 32(1) of theAct means the person who having acquired possession over the building in his own rights uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirement of laws such as Transfer of Property Act and Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of allspeaking depreciation is an allowance for the diminution in the value due to wear and tear of capital asset employed by an assessee in his business. Blacks Law Dictionary (Fifth Edn.) defines depreciation to mean, inter aliafall in value; reduction of worth. The deterioration, or the loss or lessening in value, arising from age, use, and improvements, due to better methods. A decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects of useful life of property.......... Consistent, gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost againstParks in Principles & Practice of Valuation (Fifth Edn., at page 323) states: As for building, depreciation is the measurement of wearing out through consumption, or use, or effluxion of time. Paton has in his Accounts Handbook (3rd Edn.) observed that depreciation is ancost as any other costs. he has furtherdepreciation charge is merely the periodic operating aspect of fixed assetoverall view of the above said authorities show that the very concept of depreciation suggests that the tax benefit on account of depreciation legitimately belongs to one who has invested in the capital asset, is utilizing the capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace the same by having lost its value fully over a period ofed that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the Legislature in enacting Section 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for thevests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not subserve the legislative intent. To take the case at hand it is thewho having paid part of the price, has been placed in possession of the houses as an owner and is using the buildings for the purpose of its business in its own right. Still the assessee has been denied the benefit of Section 32. On the other hand, the Housing Board would be denied the benefit of Section 32 because inspire of its being the legal owner it was not using the building for its business or profession. We do not think such a benefitnone situation could have been intended by the legislature. The finding of fact arrived at in the case at hand is that though a document of title was not executed by Housing Board in favour of the assessee, but the houses were allotted to the assessee by the Housing Board, part payment received and possession delivered so as to confer dominion over the property on the assessee whereafter the assessee had in its own right allotted the quarters to the staff and they were being actually used by the staff of the assessee. It is common knowledge, under the various schemes floated by bodies like housing boards, houses are constructed on large scale and allotted on part payment to those who have booked. Possession is also delivered to the allottee so as to enable enjoyment of the property. Execution of document transferring title necessarily follows if the schedule of payment is observed by allottee. If only the allotee may default the property may revert back to the Board. That is a matter only between the Housing Board and the allottee. No third person intervenes. The part payments made by allottee are with the intention of acquiring title. The delivery of possession by Housing Board to allottee is also a step towards conferring ownership. Documentation is delayed only with the idea of compelling the allottee to observe the schedule of payment.
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Dehri Rohtas Light Railway Company Limted Vs. District Board Bhojpur And Ors | of quashing the said demands in the writ petition filed earlier. The challenge in the suit as stated was only on the basis of the agreement and not on the ground of illegality. The company did not include the demands for the earlier years in the first writ petition. It is therefore, contended for the respondents that the second writ petition filed after a long lapse of the several years had not been rightly dismissed by the High Court. It is also contended that the demands could not be quashed in the civil suit on the ground now urged. The learned counsel for the respondents, therefore, submitted that the these appeals should fail. He also placed reliance on the decision of this Court in Tilokchand Motichand v. H. B. Munshi ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) in support of the judgment of the High Court that the writ petition cannot be entertained after the inordinate delay. 10. The appellants learned counsel referred to the earlier decision of the High Court wherein the Court observed thus. "...... net profits from the railways must in the context of the Act, be given a restricted meaning and it is the net profit from immovable properties of the railways which is liable to the payment of the local cess. Thus the net profit of the company is referable partly to its ownership of movable properties. It is only that portion of net profit which is derived from the use of the immovable property of the petitioner Company which is liable to cess. If that be the correct view the present demand contained in Annexures 3 to 7 is not sustainable. Of Course, it would be open to the authorities to reassess the cess in the light of the legal position as explained, and after the determining as to what portion of the net income is referable to its ownership of immovable property." * 11. It is accordingly settled that the statutory basis of the chargeability under the Cess Act is the immovable property of the Company. The appellants learned counsel maintained that the jurisdiction of the Cess Authorities is, therefore, confined to levy of cess only on the net profits of the company derived from the immovable properties and any different stand would be hit by Article 265 of the Constitution of India. 12. The question thus for consideration is whether the appellant should be deprived of the relief on account of the laches and delay. It is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open the under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case. 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief of the party on the grounds of laches or delay is denied is that the eights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in the such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to the any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which a manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That the being the case, the claim of the appellant cannot the turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed. 14. Since the entire matter is before us, we do not consider that it is necessary to remit back the case to the High Court for fresh disposal. | 0[ds]11. It is accordingly settled that the statutory basis of the chargeability under the Cess Act is the immovable property of the Company. The appellants learned counsel maintained that the jurisdiction of the Cess Authorities is, therefore, confined to levy of cess only on the net profits of the company derived from the immovable properties and any different stand would be hit by Article 265 of the Constitution of IndiaIt is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open the under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief of the party on the grounds of laches or delay is denied is that the eights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in the such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to the any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which a manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That the being the case, the claim of the appellant cannot the turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed14. Since the entire matter is before us, we do not consider that it is necessary to remit back the case to the High Court for fresh disposal. | 0 | 2,074 | 699 | ### 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:
of quashing the said demands in the writ petition filed earlier. The challenge in the suit as stated was only on the basis of the agreement and not on the ground of illegality. The company did not include the demands for the earlier years in the first writ petition. It is therefore, contended for the respondents that the second writ petition filed after a long lapse of the several years had not been rightly dismissed by the High Court. It is also contended that the demands could not be quashed in the civil suit on the ground now urged. The learned counsel for the respondents, therefore, submitted that the these appeals should fail. He also placed reliance on the decision of this Court in Tilokchand Motichand v. H. B. Munshi ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) in support of the judgment of the High Court that the writ petition cannot be entertained after the inordinate delay. 10. The appellants learned counsel referred to the earlier decision of the High Court wherein the Court observed thus. "...... net profits from the railways must in the context of the Act, be given a restricted meaning and it is the net profit from immovable properties of the railways which is liable to the payment of the local cess. Thus the net profit of the company is referable partly to its ownership of movable properties. It is only that portion of net profit which is derived from the use of the immovable property of the petitioner Company which is liable to cess. If that be the correct view the present demand contained in Annexures 3 to 7 is not sustainable. Of Course, it would be open to the authorities to reassess the cess in the light of the legal position as explained, and after the determining as to what portion of the net income is referable to its ownership of immovable property." * 11. It is accordingly settled that the statutory basis of the chargeability under the Cess Act is the immovable property of the Company. The appellants learned counsel maintained that the jurisdiction of the Cess Authorities is, therefore, confined to levy of cess only on the net profits of the company derived from the immovable properties and any different stand would be hit by Article 265 of the Constitution of India. 12. The question thus for consideration is whether the appellant should be deprived of the relief on account of the laches and delay. It is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open the under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case. 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief of the party on the grounds of laches or delay is denied is that the eights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in the such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to the any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which a manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That the being the case, the claim of the appellant cannot the turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed. 14. Since the entire matter is before us, we do not consider that it is necessary to remit back the case to the High Court for fresh disposal.
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0
### Explanation:
11. It is accordingly settled that the statutory basis of the chargeability under the Cess Act is the immovable property of the Company. The appellants learned counsel maintained that the jurisdiction of the Cess Authorities is, therefore, confined to levy of cess only on the net profits of the company derived from the immovable properties and any different stand would be hit by Article 265 of the Constitution of IndiaIt is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open the under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief of the party on the grounds of laches or delay is denied is that the eights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in the such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to the any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which a manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case ( 1969 (1) SCC 110 : 1969 (2) SCR 824 ) relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That the being the case, the claim of the appellant cannot the turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed14. Since the entire matter is before us, we do not consider that it is necessary to remit back the case to the High Court for fresh disposal.
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Pushpawatibai (Deceased) & After Her Legal Representatives & Others Vs. Ratansi & Another | for partition of the joint family property (Civil Suit No. 26 of 1909). Dinkarrao Rajurkar who subsequently died is the husband of the first appellant and the father of appellants 2-.5. In execution of the decree passed in the said suit, a plot of land along with other property was allotted to the shale of Dinkarrao. When Dinkarrao sought to obtain possession of the said plot in execution, he was resisted by the respondents, but by an order passed on August 28, 1930, the respondents were directed to remove their obstruction and to deliver possession of the land to Dinkarrao. Accordingly on September 29, 1930. Dinkarrao was put in possession.3. Then followed a suit filed by the respondents under O. 21, R. 103, C. P. C. (Civil Suit No. 113 of 1931). This suit was subsequently renumbered as 36-A/1937, and was ultimately decreed on April 29, 1940. In substance, the decree declared that the respondents were entitled to possession of the plot in suit together with the buildings thereon at the date of their dispossession by the order passed on August 28, 1930 and it directed Dinkarrao to deliver possession of the property to the respondents.4. Dinkarrao then preferred first appeal No. 54 of 1940 in the High Court against the said decree and pending the final disposal of the said appeal, he prayed that the execution of the decree for possession should be stayed. The High Court granted stay by an order passed on June 28, 1940 "provided that the appellant furnished adequate security for costs as well as mesne profits accruing from the date of the decree to the date of delivery of possession in case the appeal fails." Security was accordingly furnished and execution of the decree was stayed.5. On December 10, 1946, the appeal was dismissed on the merits. In the result, the decree passed by the trial Court in favour of the respondents was confirmed. Thereafter, Dinkarrao applied to the High Court for a certificate for appeal to Privy Council and renewed his prayer for stay of the execution of the decree until disposal of the appeal by the Privy Council. This application, however, was not allowed. In due course, the appeal came to be heard by this Court and was dismissed.6. On April 8, 1947, the respondents made an application under O. 21, R. 11 (2) of the Code for execution of the decree passed in Civil Suit No. 36-A/1987. By this application, they claimed delivery of possession of the property specified in the decree and mesne profits by way of refund of rent collected by the Judgment-debtor, Dinkarrao from 29th April 1940 to the date of delivery of possession. The claim for mesne profits thus made by the respondents was resisted by Dinkarrao. Pending these proceedings, Dinkarrao died on November 1, 1949, but the appellants who are his legal representatives were brought on the record on January 9, 1951 and they renewed the plea made by Dinkarrao that the claim for mesne profits was incompetent. The executing Court upheld this plea and rejected the respondents claim for mesne profits. On appeal, the said claim has been allowed and the decree passed by the Letters Patent Bench in that behalf has brought the appellants to this Court by special leave.7. The only contention which Mr. Agarwala for the appellants has raised before us is that the procedure adopted by the respondents in claiming mesne profits is not warranted by law. He concedes that the order passed by the High Court in granting stay in appeal required Dinkarrao to furnish security for mesne profits as well as costs, and that undoubtedly gives the respondents a right to claim mesne profits and imposes a corresponding liability on the appellants to pas mesne profits from the date of the decree to the date of delivery of possession. The only argument is that this claim can be enforced either by a suit or by an application properly made to execute this order itself. He said that present application has been made to execute the decree passed in the appeal on the merits and since the said decree does not award mesne profits, it is not competent to, the respondents to claim mesne profits by way of executing the said decree. In our opinion, this contention is purely technical and has been rightly rejected by the Letters Patent Bench. The execution application no doubt purports to obtain execution of the decree passed in appeal No. 54 of 1940 on December 10, l946: but the record shows that after objections were filed to the said application by the judgment-debtor Dinkarrao, the respondents offered an explanation and in doing so, they set out the order passed by the High Court in granting stay and made it clear that it is by virtue of the said order that they were making the claim for mesne profits. In substance, therefore, the respondents were claiming mesne profits by virtue of the order passed by the High Court in granting stay to Dinkarrao. The only point and the technical objection raised by the appellants is that a separate application for execution with adequate Court fees stamp should have been filed to execute the order passed by the High Court on the stay application as such and that since that prayer has been made in an application by which the decree itself is sought to be executed, the said prayer should be treated as incompetent. In our opinion, having regard to the explanation filed by the respondents, it is quite clear that the respondents were seeking to execute the decree so far as possession was concerned and were asking for mesne profits under the stay order granted by the High Court. The execution application filed by them can, therefore, he treated as a composite application asking, for execution both of the decree and the stay order. That, in substance, is the view taken by the High Court and we see no reasons to interfere with it. | 0[ds]In our opinion, this contention is purely technical and has been rightly rejected by the Letters Patent Bench. The execution application no doubt purports to obtain execution of the decree passed in appeal No. 54 of 1940 on December 10, l946: but the record shows that after objections were filed to the said application by theDinkarrao, the respondents offered an explanation and in doing so, they set out the order passed by the High Court in granting stay and made it clear that it is by virtue of the said order that they were making the claim for mesne profits. In substance, therefore, the respondents were claiming mesne profits by virtue of the order passed by the High Court in granting stay to Dinkarrao. The only point and the technical objection raised by the appellants is that a separate application for execution with adequate Court fees stamp should have been filed to execute the order passed by the High Court on the stay application as such and that since that prayer has been made in an application by which the decree itself is sought to be executed, the said prayer should be treated as incompetent. In our opinion, having regard to the explanation filed by the respondents, it is quite clear that the respondents were seeking to execute the decree so far as possession was concerned and were asking for mesne profits under the stay order granted by the High Court. The execution application filed by them can, therefore, he treated as a composite application asking, for execution both of the decree and the stay order. That, in substance, is the view taken by the High Court and we see no reasons to interfere with it. | 0 | 1,226 | 313 | ### 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:
for partition of the joint family property (Civil Suit No. 26 of 1909). Dinkarrao Rajurkar who subsequently died is the husband of the first appellant and the father of appellants 2-.5. In execution of the decree passed in the said suit, a plot of land along with other property was allotted to the shale of Dinkarrao. When Dinkarrao sought to obtain possession of the said plot in execution, he was resisted by the respondents, but by an order passed on August 28, 1930, the respondents were directed to remove their obstruction and to deliver possession of the land to Dinkarrao. Accordingly on September 29, 1930. Dinkarrao was put in possession.3. Then followed a suit filed by the respondents under O. 21, R. 103, C. P. C. (Civil Suit No. 113 of 1931). This suit was subsequently renumbered as 36-A/1937, and was ultimately decreed on April 29, 1940. In substance, the decree declared that the respondents were entitled to possession of the plot in suit together with the buildings thereon at the date of their dispossession by the order passed on August 28, 1930 and it directed Dinkarrao to deliver possession of the property to the respondents.4. Dinkarrao then preferred first appeal No. 54 of 1940 in the High Court against the said decree and pending the final disposal of the said appeal, he prayed that the execution of the decree for possession should be stayed. The High Court granted stay by an order passed on June 28, 1940 "provided that the appellant furnished adequate security for costs as well as mesne profits accruing from the date of the decree to the date of delivery of possession in case the appeal fails." Security was accordingly furnished and execution of the decree was stayed.5. On December 10, 1946, the appeal was dismissed on the merits. In the result, the decree passed by the trial Court in favour of the respondents was confirmed. Thereafter, Dinkarrao applied to the High Court for a certificate for appeal to Privy Council and renewed his prayer for stay of the execution of the decree until disposal of the appeal by the Privy Council. This application, however, was not allowed. In due course, the appeal came to be heard by this Court and was dismissed.6. On April 8, 1947, the respondents made an application under O. 21, R. 11 (2) of the Code for execution of the decree passed in Civil Suit No. 36-A/1987. By this application, they claimed delivery of possession of the property specified in the decree and mesne profits by way of refund of rent collected by the Judgment-debtor, Dinkarrao from 29th April 1940 to the date of delivery of possession. The claim for mesne profits thus made by the respondents was resisted by Dinkarrao. Pending these proceedings, Dinkarrao died on November 1, 1949, but the appellants who are his legal representatives were brought on the record on January 9, 1951 and they renewed the plea made by Dinkarrao that the claim for mesne profits was incompetent. The executing Court upheld this plea and rejected the respondents claim for mesne profits. On appeal, the said claim has been allowed and the decree passed by the Letters Patent Bench in that behalf has brought the appellants to this Court by special leave.7. The only contention which Mr. Agarwala for the appellants has raised before us is that the procedure adopted by the respondents in claiming mesne profits is not warranted by law. He concedes that the order passed by the High Court in granting stay in appeal required Dinkarrao to furnish security for mesne profits as well as costs, and that undoubtedly gives the respondents a right to claim mesne profits and imposes a corresponding liability on the appellants to pas mesne profits from the date of the decree to the date of delivery of possession. The only argument is that this claim can be enforced either by a suit or by an application properly made to execute this order itself. He said that present application has been made to execute the decree passed in the appeal on the merits and since the said decree does not award mesne profits, it is not competent to, the respondents to claim mesne profits by way of executing the said decree. In our opinion, this contention is purely technical and has been rightly rejected by the Letters Patent Bench. The execution application no doubt purports to obtain execution of the decree passed in appeal No. 54 of 1940 on December 10, l946: but the record shows that after objections were filed to the said application by the judgment-debtor Dinkarrao, the respondents offered an explanation and in doing so, they set out the order passed by the High Court in granting stay and made it clear that it is by virtue of the said order that they were making the claim for mesne profits. In substance, therefore, the respondents were claiming mesne profits by virtue of the order passed by the High Court in granting stay to Dinkarrao. The only point and the technical objection raised by the appellants is that a separate application for execution with adequate Court fees stamp should have been filed to execute the order passed by the High Court on the stay application as such and that since that prayer has been made in an application by which the decree itself is sought to be executed, the said prayer should be treated as incompetent. In our opinion, having regard to the explanation filed by the respondents, it is quite clear that the respondents were seeking to execute the decree so far as possession was concerned and were asking for mesne profits under the stay order granted by the High Court. The execution application filed by them can, therefore, he treated as a composite application asking, for execution both of the decree and the stay order. That, in substance, is the view taken by the High Court and we see no reasons to interfere with it.
### Response:
0
### Explanation:
In our opinion, this contention is purely technical and has been rightly rejected by the Letters Patent Bench. The execution application no doubt purports to obtain execution of the decree passed in appeal No. 54 of 1940 on December 10, l946: but the record shows that after objections were filed to the said application by theDinkarrao, the respondents offered an explanation and in doing so, they set out the order passed by the High Court in granting stay and made it clear that it is by virtue of the said order that they were making the claim for mesne profits. In substance, therefore, the respondents were claiming mesne profits by virtue of the order passed by the High Court in granting stay to Dinkarrao. The only point and the technical objection raised by the appellants is that a separate application for execution with adequate Court fees stamp should have been filed to execute the order passed by the High Court on the stay application as such and that since that prayer has been made in an application by which the decree itself is sought to be executed, the said prayer should be treated as incompetent. In our opinion, having regard to the explanation filed by the respondents, it is quite clear that the respondents were seeking to execute the decree so far as possession was concerned and were asking for mesne profits under the stay order granted by the High Court. The execution application filed by them can, therefore, he treated as a composite application asking, for execution both of the decree and the stay order. That, in substance, is the view taken by the High Court and we see no reasons to interfere with it.
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Jagdeo Singh and Others Vs. State of Maharashtra | as he was absconding The remaining eight persons were tried by the learned Additional Sessions Judge, Five were acquitted. Jagdeo Singh, Baldeo Singh and Labh Singh were convicted and they are the appellants before us 2. Shri A. N. Mulla learned counsel for the appellants took us through the relevant evidence and submitted that the evidence of P.W. 3, the sole eye witness to the occurrence, was full of infirmities and therefore, no conviction should be based on his evidence. He submitted that P.W. 3 had no genuine opportunity of identifying the assailants of Kripal Singh as Kripal Singh must have got down from the truck and run away as soon as he sensed danger. He was apparently attacked at a distance of 380 feet from the truck, whereas P.W. 3 was attacked near the truck itself. In the circumstances P.W. 3 would not have been able to identify the assailants of the deceased. Considerable argument was advanced on the circumstance that the right hand side door of the truck was found shut whereas the left hand side door of the truck was found open when the police arrived on the spot. This according to Shri Mulla indicated that the assailant did not drag the deceased out of the truck by opening the right hand side door. The deceased himself must have run away. Shri Mulla also commented on the circumstance that there were no blood stains on the drivers seat of the truck whereas there were blood stains on the cleaners seat. He also drew our attention to the circumstance that there was practically no light near the spot where the dead body of the deceased was found lying. Shri Mulla further argued that P.W. 3 had made considerable improvements to the version originally given by him in the statements made by him to the Magistrate and the Police. He particularly drew our attention to the fact that the overt acts now attributed to the accused were not mentioned in the statement made to the Magistrate 3. We have considered the submissions of Shri Mulla carefully. We are not impressed with the submissions. On the other hand we are greatly impressed by the evidence of P.W. 3 His evidence regarding the complicity of the appellants before us is corroborated by the statement made by him to the Taluqa Magistrate soon after he regained conscious ness in the hospital. Very great weight has necessarily to be attached to the statement having regard to the circumstances in which it was made. He was removed from the scene of occurrence in an unconscious state. The statement was recorded soon after he regained consciousness before he could possibly be contacted by anyone. He was obviously under great strain and pain at that time. His answers were brief and to the point. He confined himself to the questions put to him and gave direct answers. In fact if he did not give more details of the occurrence it was obviously because he was merely answering the questions put to him by the Magistrate. We do not think that the several omissions in the statement which have been pointed out to us are of any great significance in the circumstance of the case. His statement shows that Jagdeo Singh and Baldeo Singh went after Kripal Singh While Labh Singh and harbans Singh attacked him. No doubt the overt acts now attributed to the assailants were not mentioned in the statement. That does not detract from the credibility of the witness in the particular circumstances of this case. We are not impressed with the argument that P.W. 3 could not have identified the assailants of the deceased. Both Jagdeo Singh and Baldeo Singh were quit well known to him, and according to his evidence they came near the truck and dragged the deceased out. Whether he was dragged out or whether he himself got down from the truck it must be from the right hand side door only since P.W. 3 was sitting in the cleaners seat and it would not have been easily possible for Kripal Singh to escape from the left hand side door. Further the plan prepared by the investigating Officer shows that the spot where his dead body was found and, therefore, the direction towards which he ran was on the same side as the truck BRV 5657. If the assailants were coming from the truck BRV 5657 the deceased would not have run in that direction but he would have run in the opposite direction. It is clear to our minds that the deceased must have been dragged out of the truck by the accused. As already mentioned by us we are greatly impressed by the evidence of P.W. 3. We do not think it necessary to consider several other minor submissions made by Shri Mulla as we agree with the reasons given by the High Court to affirm the conviction of the three appellants Shri Mulla raised a special plea on behalf of Jagdeo Singh and urged that he was a driver of truck No. BRV 4482 and that this truck never came upon the scene and therefore Jagdeo Singh would not have participated in the occurrence. We do not agree with this submission. We do not think that it was necessary for all the three trucks to have come to the scene of occurrence. Obviously Jagdeo Singh came to the scene in the truck No. BRV 5657. Shri Mulla also submitted that Labh Singh could not be convicted of murder as there were no grounds for applying Section 34 or Section 149. We see no force in this submission either. The attacks on both the deceased and P.W. 3 were part of the same transaction. That some assailants came in one truck and attacked the deceased and the other assailants came in another truck and attacked P.W. 3 does not make any difference. It is a clear case where there was prior concert and planning by all the accuse. | 0[ds]3. We have considered the submissions of Shri Mulla carefully. We are not impressed with the submissions. On the other hand we are greatly impressed by the evidence of P.W. 3 His evidence regarding the complicity of the appellants before us is corroborated by the statement made by him to the Taluqa Magistrate soon after he regained conscious ness in the hospital. Very great weight has necessarily to be attached to the statement having regard to the circumstances in which it was made. He was removed from the scene of occurrence in an unconscious state. The statement was recorded soon after he regained consciousness before he could possibly be contacted by anyone. He was obviously under great strain and pain at that time. His answers were brief and to the point. He confined himself to the questions put to him and gave direct answers. In fact if he did not give more details of the occurrence it was obviously because he was merely answering the questions put to him by the Magistrate. We do not think that the several omissions in the statement which have been pointed out to us are of any great significance in the circumstance of the case. His statement shows that Jagdeo Singh and Baldeo Singh went after Kripal Singh While Labh Singh and harbans Singh attacked him. No doubt the overt acts now attributed to the assailants were not mentioned in the statement. That does not detract from the credibility of the witness in the particular circumstances of this case. We are not impressed with the argument that P.W. 3 could not have identified the assailants of the deceased. Both Jagdeo Singh and Baldeo Singh were quit well known to him, and according to his evidence they came near the truck and dragged the deceased out. Whether he was dragged out or whether he himself got down from the truck it must be from the right hand side door only since P.W. 3 was sitting in the cleaners seat and it would not have been easily possible for Kripal Singh to escape from the left hand side door. Further the plan prepared by the investigating Officer shows that the spot where his dead body was found and, therefore, the direction towards which he ran was on the same side as the truck BRV 5657. If the assailants were coming from the truck BRV 5657 the deceased would not have run in that direction but he would have run in the opposite direction. It is clear to our minds that the deceased must have been dragged out of the truck by the accused. As already mentioned by us we are greatly impressed by the evidence of P.W. 3. We do not think it necessary to consider several other minor submissions made by Shri Mulla as we agree with the reasons given by the High Court to affirm the conviction of the three appellants Shri Mulla raised a special plea on behalf of Jagdeo Singh and urged that he was a driver of truck No. BRV 4482 and that this truck never came upon the scene and therefore Jagdeo Singh would not have participated in the occurrence. We do not agree with this submission. We do not think that it was necessary for all the three trucks to have come to the scene of occurrence. Obviously Jagdeo Singh came to the scene in the truck No. BRV 5657. Shri Mulla also submitted that Labh Singh could not be convicted of murder as there were no grounds for applying Section 34 or Section 149. We see no force in this submission either. The attacks on both the deceased and P.W. 3 were part of the same transaction. That some assailants came in one truck and attacked the deceased and the other assailants came in another truck and attacked P.W. 3 does not make any difference. It is a clear case where there was prior concert and planning by all the accuse. | 0 | 2,335 | 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.
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as he was absconding The remaining eight persons were tried by the learned Additional Sessions Judge, Five were acquitted. Jagdeo Singh, Baldeo Singh and Labh Singh were convicted and they are the appellants before us 2. Shri A. N. Mulla learned counsel for the appellants took us through the relevant evidence and submitted that the evidence of P.W. 3, the sole eye witness to the occurrence, was full of infirmities and therefore, no conviction should be based on his evidence. He submitted that P.W. 3 had no genuine opportunity of identifying the assailants of Kripal Singh as Kripal Singh must have got down from the truck and run away as soon as he sensed danger. He was apparently attacked at a distance of 380 feet from the truck, whereas P.W. 3 was attacked near the truck itself. In the circumstances P.W. 3 would not have been able to identify the assailants of the deceased. Considerable argument was advanced on the circumstance that the right hand side door of the truck was found shut whereas the left hand side door of the truck was found open when the police arrived on the spot. This according to Shri Mulla indicated that the assailant did not drag the deceased out of the truck by opening the right hand side door. The deceased himself must have run away. Shri Mulla also commented on the circumstance that there were no blood stains on the drivers seat of the truck whereas there were blood stains on the cleaners seat. He also drew our attention to the circumstance that there was practically no light near the spot where the dead body of the deceased was found lying. Shri Mulla further argued that P.W. 3 had made considerable improvements to the version originally given by him in the statements made by him to the Magistrate and the Police. He particularly drew our attention to the fact that the overt acts now attributed to the accused were not mentioned in the statement made to the Magistrate 3. We have considered the submissions of Shri Mulla carefully. We are not impressed with the submissions. On the other hand we are greatly impressed by the evidence of P.W. 3 His evidence regarding the complicity of the appellants before us is corroborated by the statement made by him to the Taluqa Magistrate soon after he regained conscious ness in the hospital. Very great weight has necessarily to be attached to the statement having regard to the circumstances in which it was made. He was removed from the scene of occurrence in an unconscious state. The statement was recorded soon after he regained consciousness before he could possibly be contacted by anyone. He was obviously under great strain and pain at that time. His answers were brief and to the point. He confined himself to the questions put to him and gave direct answers. In fact if he did not give more details of the occurrence it was obviously because he was merely answering the questions put to him by the Magistrate. We do not think that the several omissions in the statement which have been pointed out to us are of any great significance in the circumstance of the case. His statement shows that Jagdeo Singh and Baldeo Singh went after Kripal Singh While Labh Singh and harbans Singh attacked him. No doubt the overt acts now attributed to the assailants were not mentioned in the statement. That does not detract from the credibility of the witness in the particular circumstances of this case. We are not impressed with the argument that P.W. 3 could not have identified the assailants of the deceased. Both Jagdeo Singh and Baldeo Singh were quit well known to him, and according to his evidence they came near the truck and dragged the deceased out. Whether he was dragged out or whether he himself got down from the truck it must be from the right hand side door only since P.W. 3 was sitting in the cleaners seat and it would not have been easily possible for Kripal Singh to escape from the left hand side door. Further the plan prepared by the investigating Officer shows that the spot where his dead body was found and, therefore, the direction towards which he ran was on the same side as the truck BRV 5657. If the assailants were coming from the truck BRV 5657 the deceased would not have run in that direction but he would have run in the opposite direction. It is clear to our minds that the deceased must have been dragged out of the truck by the accused. As already mentioned by us we are greatly impressed by the evidence of P.W. 3. We do not think it necessary to consider several other minor submissions made by Shri Mulla as we agree with the reasons given by the High Court to affirm the conviction of the three appellants Shri Mulla raised a special plea on behalf of Jagdeo Singh and urged that he was a driver of truck No. BRV 4482 and that this truck never came upon the scene and therefore Jagdeo Singh would not have participated in the occurrence. We do not agree with this submission. We do not think that it was necessary for all the three trucks to have come to the scene of occurrence. Obviously Jagdeo Singh came to the scene in the truck No. BRV 5657. Shri Mulla also submitted that Labh Singh could not be convicted of murder as there were no grounds for applying Section 34 or Section 149. We see no force in this submission either. The attacks on both the deceased and P.W. 3 were part of the same transaction. That some assailants came in one truck and attacked the deceased and the other assailants came in another truck and attacked P.W. 3 does not make any difference. It is a clear case where there was prior concert and planning by all the accuse.
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0
### Explanation:
3. We have considered the submissions of Shri Mulla carefully. We are not impressed with the submissions. On the other hand we are greatly impressed by the evidence of P.W. 3 His evidence regarding the complicity of the appellants before us is corroborated by the statement made by him to the Taluqa Magistrate soon after he regained conscious ness in the hospital. Very great weight has necessarily to be attached to the statement having regard to the circumstances in which it was made. He was removed from the scene of occurrence in an unconscious state. The statement was recorded soon after he regained consciousness before he could possibly be contacted by anyone. He was obviously under great strain and pain at that time. His answers were brief and to the point. He confined himself to the questions put to him and gave direct answers. In fact if he did not give more details of the occurrence it was obviously because he was merely answering the questions put to him by the Magistrate. We do not think that the several omissions in the statement which have been pointed out to us are of any great significance in the circumstance of the case. His statement shows that Jagdeo Singh and Baldeo Singh went after Kripal Singh While Labh Singh and harbans Singh attacked him. No doubt the overt acts now attributed to the assailants were not mentioned in the statement. That does not detract from the credibility of the witness in the particular circumstances of this case. We are not impressed with the argument that P.W. 3 could not have identified the assailants of the deceased. Both Jagdeo Singh and Baldeo Singh were quit well known to him, and according to his evidence they came near the truck and dragged the deceased out. Whether he was dragged out or whether he himself got down from the truck it must be from the right hand side door only since P.W. 3 was sitting in the cleaners seat and it would not have been easily possible for Kripal Singh to escape from the left hand side door. Further the plan prepared by the investigating Officer shows that the spot where his dead body was found and, therefore, the direction towards which he ran was on the same side as the truck BRV 5657. If the assailants were coming from the truck BRV 5657 the deceased would not have run in that direction but he would have run in the opposite direction. It is clear to our minds that the deceased must have been dragged out of the truck by the accused. As already mentioned by us we are greatly impressed by the evidence of P.W. 3. We do not think it necessary to consider several other minor submissions made by Shri Mulla as we agree with the reasons given by the High Court to affirm the conviction of the three appellants Shri Mulla raised a special plea on behalf of Jagdeo Singh and urged that he was a driver of truck No. BRV 4482 and that this truck never came upon the scene and therefore Jagdeo Singh would not have participated in the occurrence. We do not agree with this submission. We do not think that it was necessary for all the three trucks to have come to the scene of occurrence. Obviously Jagdeo Singh came to the scene in the truck No. BRV 5657. Shri Mulla also submitted that Labh Singh could not be convicted of murder as there were no grounds for applying Section 34 or Section 149. We see no force in this submission either. The attacks on both the deceased and P.W. 3 were part of the same transaction. That some assailants came in one truck and attacked the deceased and the other assailants came in another truck and attacked P.W. 3 does not make any difference. It is a clear case where there was prior concert and planning by all the accuse.
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Sanjay Verma Vs. Haryana Roadways | is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.” 13. Certain parallel developments will now have to be taken note of. In Reshma Kumari and Others vs. Madan Mohan and Another [(2009) 13 SCC 422] , a two Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench “(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?” 14. Answering the above reference a three Judge Bench of this Court in Reshma Kumari and Ors. vs. Madan Mohan and Anr. [(2013) 9 SCC 65 (para 36)] reiterated the view taken in Sarla Verma (supra) to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression “exceptional and extraordinary circumstances” is not capable of any precise definition, in Shakti Devi vs. New India Insurance Company Limited and Another [(2010) 14 SCC 575] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death. 15. Undoubtedly, the same principle will apply for determination of loss of income on account of an accident resulting in the total disability of the victim as in the present case. Therefore, taking into account the age of the claimant (25 years) and the fact that he had a steady income, as evidenced by the income-tax returns, we are of the view that an addition of 50% to the income that the claimant was earning at the time of the accident would be justified. 16. Insofar as the multiplier is concerned, as held in Sarla Verma (supra) (para 42) or as prescribed under the Second Schedule to the Act, the correct multiplier in the present case cannot be 15 as held by the High Court. We are of the view that the adoption of the multiplier of 17 would be appropriate. Accordingly, taking into account the addition to the income and the higher multiplier the total amount of compensation payable to the claimant under the head “loss of income” is Rs. 10,53,150/- (Rs. 41300 + Rs. 20650= Rs. 61,950 x 17). 17. In so far as the medical expenses is concerned as the awarded amount of Rs.1,38,552/- has been found payable on the basis of the bills/vouchers etc. brought on record by the claimant we will have no occasion to cause any alteration of the amount of compensation payable under the head “medical expenses”. Accordingly, the finding of the High Court in this regard is maintained. 18. This will bring us to the grievance of the appellant-claimant with regard to award of compensation of Rs.50,000/- under the head “future treatment” and “pain and suffering”. In view of the decisions of this Court in Raj Kumar vs. Ajay Kumar and Another [(2011) 1 SCC 343] and Sanjay Batham vs. Munnalal Parihar and Others [(2011) 10 SCC 665] there can be no manner of doubt that the above two heads of compensation are distinct and different and cannot be clubbed together. We will, therefore, have to severe the two heads which have been clubbed together by the High Court.In so far as “future treatment” is concerned we have no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health. In fact, the claimant in his deposition has stated that he is undergoing treatment at the Apollo Hospital at Delhi. Though it is not beyond our powers to award compensation beyond what has been claimed [Nagappa vs. Gurudayal Singh and others [(2003) 2 SCC 274] ], in the facts of the present case we are of the view that the grant of full compensation, as claimed in the claim petition i.e. Rs.3,00,000/- under the head “future treatment”, would meet the ends of justice. We, therefore, order accordingly.19. The claimant had claimed an amount of Rs.20,00,000/- under the head “pain and suffering and mental agony”. Considering the injuries sustained by the claimant which had left him paralyzed for life and the evidence of PW-1 to the effect that the claimant is likely to suffer considerable pain throughout his life, we are of the view that the claimant should be awarded a further sum of Rs. 3,00,000/- on account of “pain and suffering”. We must, however, acknowledge that monetary compensation for pain and suffering is at best a palliative, the correct dose of which, in the last analysis, will have to be determined on a case to case basis. 20. In the claim petition filed before the Motor Accident Claim Tribunal the claimant has prayed for an amount of Rs.2,00,000/- being the cost of attendant from the date of accident till he remains alive. The claimant in his deposition had stated that “he needs one person to be with him all the time”. The aforesaid statement of the claimant is duly supported by the evidence of PW-1 who has described the medical condition of the claimant in detail. From the aforesaid materials, we are satisfied that the claim made on this count is justified and the amount of Rs.2,00,000/- claimed by the claimant under the aforesaid head should be awarded in full. We order accordingly. | 1[ds]No fault, therefore, can be found in the order of the High Court which proceeds on the basis that the annual income of the claimant at the time of the accident was Rs.41,300/-.into account the age of the claimant (25 years) and the fact that he had a steady income, as evidenced by the income-tax returns, we are of the view that an addition of 50% to the income that the claimant was earning at the time of the accident would be justified.We are of the view that the adoption of the multiplier of 17 would be appropriate. Accordingly, taking into account the addition to the income and the higher multiplier the total amount of compensation payable to the claimant under the headis Rs. 10,53,150/- (Rs. 41300 + Rs. 20650= Rs. 61,950 x 17).Accordingly, the finding of the High Court in this regard iswill, therefore, have to severe the two heads which have been clubbed together by the High Court.In so far asis concerned we have no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health. In fact, the claimant in his deposition has stated that he is undergoing treatment at the Apollo Hospital at Delhi. Though it is not beyond our powers to award compensation beyond what has been claimed [Nagappa vs. Gurudayal Singh and others [(2003) 2 SCC 274] ], in the facts of the present case we are of the view that the grant of full compensation, as claimed in the claim petition i.e. Rs.3,00,000/- under the head, would meet the ends of justice. We, therefore, order accordingly.19. The claimant had claimed an amount of Rs.20,00,000/- under the headng and mentalConsidering the injuries sustained by the claimant which had left him paralyzed for life and the evidence of PW-1 to the effect that the claimant is likely to suffer considerable pain throughout his life, we are of the view that the claimant should be awarded a further sum of Rs. 3,00,000/- on account ofWe must, however, acknowledge that monetary compensation forng is at best a palliative, the correct dose of which, in the last analysis, will have to be determined on a case to casethe aforesaid materials, we are satisfied that the claim made on this count is justified and the amount of Rs.2,00,000/- claimed by the claimant under the aforesaid head should be awarded in full. We order | 1 | 3,062 | 454 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.” 13. Certain parallel developments will now have to be taken note of. In Reshma Kumari and Others vs. Madan Mohan and Another [(2009) 13 SCC 422] , a two Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench “(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?” 14. Answering the above reference a three Judge Bench of this Court in Reshma Kumari and Ors. vs. Madan Mohan and Anr. [(2013) 9 SCC 65 (para 36)] reiterated the view taken in Sarla Verma (supra) to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression “exceptional and extraordinary circumstances” is not capable of any precise definition, in Shakti Devi vs. New India Insurance Company Limited and Another [(2010) 14 SCC 575] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death. 15. Undoubtedly, the same principle will apply for determination of loss of income on account of an accident resulting in the total disability of the victim as in the present case. Therefore, taking into account the age of the claimant (25 years) and the fact that he had a steady income, as evidenced by the income-tax returns, we are of the view that an addition of 50% to the income that the claimant was earning at the time of the accident would be justified. 16. Insofar as the multiplier is concerned, as held in Sarla Verma (supra) (para 42) or as prescribed under the Second Schedule to the Act, the correct multiplier in the present case cannot be 15 as held by the High Court. We are of the view that the adoption of the multiplier of 17 would be appropriate. Accordingly, taking into account the addition to the income and the higher multiplier the total amount of compensation payable to the claimant under the head “loss of income” is Rs. 10,53,150/- (Rs. 41300 + Rs. 20650= Rs. 61,950 x 17). 17. In so far as the medical expenses is concerned as the awarded amount of Rs.1,38,552/- has been found payable on the basis of the bills/vouchers etc. brought on record by the claimant we will have no occasion to cause any alteration of the amount of compensation payable under the head “medical expenses”. Accordingly, the finding of the High Court in this regard is maintained. 18. This will bring us to the grievance of the appellant-claimant with regard to award of compensation of Rs.50,000/- under the head “future treatment” and “pain and suffering”. In view of the decisions of this Court in Raj Kumar vs. Ajay Kumar and Another [(2011) 1 SCC 343] and Sanjay Batham vs. Munnalal Parihar and Others [(2011) 10 SCC 665] there can be no manner of doubt that the above two heads of compensation are distinct and different and cannot be clubbed together. We will, therefore, have to severe the two heads which have been clubbed together by the High Court.In so far as “future treatment” is concerned we have no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health. In fact, the claimant in his deposition has stated that he is undergoing treatment at the Apollo Hospital at Delhi. Though it is not beyond our powers to award compensation beyond what has been claimed [Nagappa vs. Gurudayal Singh and others [(2003) 2 SCC 274] ], in the facts of the present case we are of the view that the grant of full compensation, as claimed in the claim petition i.e. Rs.3,00,000/- under the head “future treatment”, would meet the ends of justice. We, therefore, order accordingly.19. The claimant had claimed an amount of Rs.20,00,000/- under the head “pain and suffering and mental agony”. Considering the injuries sustained by the claimant which had left him paralyzed for life and the evidence of PW-1 to the effect that the claimant is likely to suffer considerable pain throughout his life, we are of the view that the claimant should be awarded a further sum of Rs. 3,00,000/- on account of “pain and suffering”. We must, however, acknowledge that monetary compensation for pain and suffering is at best a palliative, the correct dose of which, in the last analysis, will have to be determined on a case to case basis. 20. In the claim petition filed before the Motor Accident Claim Tribunal the claimant has prayed for an amount of Rs.2,00,000/- being the cost of attendant from the date of accident till he remains alive. The claimant in his deposition had stated that “he needs one person to be with him all the time”. The aforesaid statement of the claimant is duly supported by the evidence of PW-1 who has described the medical condition of the claimant in detail. From the aforesaid materials, we are satisfied that the claim made on this count is justified and the amount of Rs.2,00,000/- claimed by the claimant under the aforesaid head should be awarded in full. We order accordingly.
### Response:
1
### Explanation:
No fault, therefore, can be found in the order of the High Court which proceeds on the basis that the annual income of the claimant at the time of the accident was Rs.41,300/-.into account the age of the claimant (25 years) and the fact that he had a steady income, as evidenced by the income-tax returns, we are of the view that an addition of 50% to the income that the claimant was earning at the time of the accident would be justified.We are of the view that the adoption of the multiplier of 17 would be appropriate. Accordingly, taking into account the addition to the income and the higher multiplier the total amount of compensation payable to the claimant under the headis Rs. 10,53,150/- (Rs. 41300 + Rs. 20650= Rs. 61,950 x 17).Accordingly, the finding of the High Court in this regard iswill, therefore, have to severe the two heads which have been clubbed together by the High Court.In so far asis concerned we have no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health. In fact, the claimant in his deposition has stated that he is undergoing treatment at the Apollo Hospital at Delhi. Though it is not beyond our powers to award compensation beyond what has been claimed [Nagappa vs. Gurudayal Singh and others [(2003) 2 SCC 274] ], in the facts of the present case we are of the view that the grant of full compensation, as claimed in the claim petition i.e. Rs.3,00,000/- under the head, would meet the ends of justice. We, therefore, order accordingly.19. The claimant had claimed an amount of Rs.20,00,000/- under the headng and mentalConsidering the injuries sustained by the claimant which had left him paralyzed for life and the evidence of PW-1 to the effect that the claimant is likely to suffer considerable pain throughout his life, we are of the view that the claimant should be awarded a further sum of Rs. 3,00,000/- on account ofWe must, however, acknowledge that monetary compensation forng is at best a palliative, the correct dose of which, in the last analysis, will have to be determined on a case to casethe aforesaid materials, we are satisfied that the claim made on this count is justified and the amount of Rs.2,00,000/- claimed by the claimant under the aforesaid head should be awarded in full. We order
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Union of India and Another Vs. Dhrangadhra Chemical Works and Another | was to follow for every quarter. It is the accepted position that for the months of April, May and June 1974 the D.A. worked out at Rs. 78/- per month, but for the quarter. commencing on 1st July, 1974, and ending on 30th September, 1974, it worked out at Rs. 88.50 per month. In other words, it was an agreed position between the union and the employer that the rate of D.A. payable to all the workers from 1st Jul y, 1974, was at the rate of Rs. 88.50 per month.3. With effect from 6th July, 1974, The Additional Emoluments (Compulsory Deposit) Ordinance 1974 came into force. This Ordinance was replaced by The Additional Emoluments (Compulsory Deposit) Act 1974 (Act No. 37 of 1974) (briefly the Act) and the Act is deemed to have come into force on the 6th day of July 1974.We have already made a detailed reference to the aim and object of the Act and also dealt with the material provisions thereof in dealing with a similar question in Civil Appeal No. 690 of 1976 in which we have delivered our judgment to-day([1977] 2 S.C.R.472.). It is, therefore, not necessary to repeat those observations here.4. The short question that arises in this particular appeal turns on the Explanation-I to section 2(b) of the Act. We will, therefore, read that provision:"2(b) additional dearness allowance means such dearness allowance as may be sanctioned from time to time, after the appointed day, over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect.Explanation-I. Where payment of dearness allowance is linked to a cost of living index or any other factor, any automatic payment, after the appointed day, of dearness allowance in consequence of any rise in such cost of living index or in consequence of any change in such other factor shall, notwithstanding the provisions of this clause, be deemed to be the additional dearness allowance."5. It is clear under section 2(b) that additional D.A. has to be sanctioned after the appointed day. "Sanctioned" is the heart of the definition clause. Since additional D.A. is defined to mean such D.A. as may be sanctioned from time to time after the appointed day, Explanation-I to the definition is inserted to. deal with a situation to avoid any controversy about the sanction while there is an auto- matic rise in D.A. linked to a cost of living index. Where D.A. is linked to a cost of living index any automatic payment, after the appointed day, of D.A. in consequence of any rise in such cost of living index shall be deemed to be the additional D.A. In the absence of Explanation-I there would have been scope for controversy whether additional D.A. which is paid automatically with the rise in the cost of living index, as agreed upon, can be said to be D.A. sanctioned from time to time. Such a controversy is set at rest by insertion of Explanation-I which is a deeming clause.The question that arises for consideration in this appeal is whether -the rise in the cost of living index has also got to be after the appointed day. The union contends that the D.A. of Rs. 88.50 which is payable from 1st of July, 1974, for the quarter--1st July, 1974 to 30th September, 1974---is an pursuance of the rise of cost of living index between January to March 1974 which is prior to the appointed day, namely, 6th July, 1974. It is, therefore, submitted that no additional D.A. is deductible under the Act. The High Court has accepted the contention of the union and allowed the application under Article 226 of the. Constitution granting a Mandamus restraining the employer from deducting additional D.A. from the emoluments of the employees. The High Court also granted certificate to appeal to this Court, it is common knowledge that when D.A. is linked to a cost of living index, actual determination of the D.A. takes place after the index is published and known. The index, therefore, is always of a past period by the yardstick of which D.A. is adjusted. This being the concept about link- age of D.A. to cost of living index, Explanation-I makes it clear that when payment of D.A. is linked to a cost of living index any automatic payment after the appointed day of D.A. in consequence of any rise in the cost of living index shall. notwithstanding the provisions of this clause, be deemed to be the additional D.A.6. The non obstante clause in the Explanation takes note of the definition clause where sanction after the appointed day has been mentioned. Explanation-I therefore, plays its role, not withstanding whatever is stated in section 2(b), the definition clause. We do not find anything in Explanation-I to warrant the conclusion that rise of the cost of living index should be after the appointed day. What is to be after the appointed day is "any automatic payment of D.A. in consequence of any rise ...... "and not that any rise in the cost of living index should be after the appointed day.We are, therefore, unable to agree with the High Court that the rise of cost of living index also should be after the appointed day. It is sufficient for the purpose of Explanation-I if payment of D.A., in consequence of rise of cost of living index, takes place after the appointed day on account of rise in the cost of living index even prior to the appointed day. The nexus for the purpose of Explana- tion-I is with the payment after the appointed day and not with the rise in the cost of living index. The specified percentage of additional D.A. which is 50% of the rise, being the difference, between Rs. 78/- and Rs. 88.50 is, therefore, deductible under section 6(2)(b) of the Act and the High Court was not correct in holding to the contrary.7. | 1[ds]It is clear under section 2(b) that additional D.A. has to be sanctioned after the appointed day. "Sanctioned" is the heart of the definition clause. Since additional D.A. is defined to mean such D.A. as may be sanctioned from time to time after the appointed day, Explanation-I to the definition is inserted to. deal with a situation to avoid any controversy about the sanction while there is an auto- matic rise in D.A. linked to a cost of living index. Where D.A. is linked to a cost of living index any automatic payment, after the appointed day, of D.A. in consequence of any rise in such cost of living index shall be deemed to be the additional D.A. In the absence of Explanation-I there would have been scope for controversy whether additional D.A. which is paid automatically with the rise in the cost of living index, as agreed upon, can be said to be D.A. sanctioned from time to time. Such a controversy is set at rest by insertion of Explanation-I which is a deeming clause.The question that arises for consideration in this appeal is whether -the rise in the cost of living index has also got to be after the appointed day. The union contends that the D.A. of Rs. 88.50 which is payable from 1st of July, 1974, for the quarter--1st July, 1974 to 30th September, 1974---is an pursuance of the rise of cost of living index between January to March 1974 which is prior to the appointed day, namely, 6th July, 1974. It is, therefore, submitted that no additional D.A. is deductible under the Act. The High Court has accepted the contention of the union and allowed the application under Article 226 of the. Constitution granting a Mandamus restraining the employer from deducting additional D.A. from the emoluments of the employees. The High Court also granted certificate to appeal to thisis common knowledge that when D.A. is linked to a cost of living index, actual determination of the D.A. takes place after the index is published and known. The index, therefore, is always of a past period by the yardstick of which D.A. is adjusted. This being the concept about link- age of D.A. to cost of living index, Explanation-I makes it clear that when payment of D.A. is linked to a cost of living index any automatic payment after the appointed day of D.A. in consequence of any rise in the cost of living index shall. notwithstanding the provisions of this clause, be deemed to be the additionalnon obstante clause in the Explanation takes note of the definition clause where sanction after the appointed day has been mentioned. Explanation-I therefore, plays its role, not withstanding whatever is stated in section 2(b), the definition clause. We do not find anything in Explanation-I to warrant the conclusion that rise of the cost of living index should be after the appointed day. What is to be after the appointed day is "any automatic payment of D.A. in consequence of any rise ...... "and not that any rise in the cost of living index should be after the appointed day.We are, therefore, unable to agree with the High Court that the rise of cost of living index also should be after the appointed day. It is sufficient for the purpose of Explanation-I if payment of D.A., in consequence of rise of cost of living index, takes place after the appointed day on account of rise in the cost of living index even prior to the appointed day. The nexus for the purpose of Explana- tion-I is with the payment after the appointed day and not with the rise in the cost of living index. The specified percentage of additional D.A. which is 50% of the rise, being the difference, between Rs. 78/- and Rs. 88.50 is, therefore, deductible under section 6(2)(b) of the Act and the High Court was not correct in holding to the contrary. | 1 | 1,381 | 754 | ### 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:
was to follow for every quarter. It is the accepted position that for the months of April, May and June 1974 the D.A. worked out at Rs. 78/- per month, but for the quarter. commencing on 1st July, 1974, and ending on 30th September, 1974, it worked out at Rs. 88.50 per month. In other words, it was an agreed position between the union and the employer that the rate of D.A. payable to all the workers from 1st Jul y, 1974, was at the rate of Rs. 88.50 per month.3. With effect from 6th July, 1974, The Additional Emoluments (Compulsory Deposit) Ordinance 1974 came into force. This Ordinance was replaced by The Additional Emoluments (Compulsory Deposit) Act 1974 (Act No. 37 of 1974) (briefly the Act) and the Act is deemed to have come into force on the 6th day of July 1974.We have already made a detailed reference to the aim and object of the Act and also dealt with the material provisions thereof in dealing with a similar question in Civil Appeal No. 690 of 1976 in which we have delivered our judgment to-day([1977] 2 S.C.R.472.). It is, therefore, not necessary to repeat those observations here.4. The short question that arises in this particular appeal turns on the Explanation-I to section 2(b) of the Act. We will, therefore, read that provision:"2(b) additional dearness allowance means such dearness allowance as may be sanctioned from time to time, after the appointed day, over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect.Explanation-I. Where payment of dearness allowance is linked to a cost of living index or any other factor, any automatic payment, after the appointed day, of dearness allowance in consequence of any rise in such cost of living index or in consequence of any change in such other factor shall, notwithstanding the provisions of this clause, be deemed to be the additional dearness allowance."5. It is clear under section 2(b) that additional D.A. has to be sanctioned after the appointed day. "Sanctioned" is the heart of the definition clause. Since additional D.A. is defined to mean such D.A. as may be sanctioned from time to time after the appointed day, Explanation-I to the definition is inserted to. deal with a situation to avoid any controversy about the sanction while there is an auto- matic rise in D.A. linked to a cost of living index. Where D.A. is linked to a cost of living index any automatic payment, after the appointed day, of D.A. in consequence of any rise in such cost of living index shall be deemed to be the additional D.A. In the absence of Explanation-I there would have been scope for controversy whether additional D.A. which is paid automatically with the rise in the cost of living index, as agreed upon, can be said to be D.A. sanctioned from time to time. Such a controversy is set at rest by insertion of Explanation-I which is a deeming clause.The question that arises for consideration in this appeal is whether -the rise in the cost of living index has also got to be after the appointed day. The union contends that the D.A. of Rs. 88.50 which is payable from 1st of July, 1974, for the quarter--1st July, 1974 to 30th September, 1974---is an pursuance of the rise of cost of living index between January to March 1974 which is prior to the appointed day, namely, 6th July, 1974. It is, therefore, submitted that no additional D.A. is deductible under the Act. The High Court has accepted the contention of the union and allowed the application under Article 226 of the. Constitution granting a Mandamus restraining the employer from deducting additional D.A. from the emoluments of the employees. The High Court also granted certificate to appeal to this Court, it is common knowledge that when D.A. is linked to a cost of living index, actual determination of the D.A. takes place after the index is published and known. The index, therefore, is always of a past period by the yardstick of which D.A. is adjusted. This being the concept about link- age of D.A. to cost of living index, Explanation-I makes it clear that when payment of D.A. is linked to a cost of living index any automatic payment after the appointed day of D.A. in consequence of any rise in the cost of living index shall. notwithstanding the provisions of this clause, be deemed to be the additional D.A.6. The non obstante clause in the Explanation takes note of the definition clause where sanction after the appointed day has been mentioned. Explanation-I therefore, plays its role, not withstanding whatever is stated in section 2(b), the definition clause. We do not find anything in Explanation-I to warrant the conclusion that rise of the cost of living index should be after the appointed day. What is to be after the appointed day is "any automatic payment of D.A. in consequence of any rise ...... "and not that any rise in the cost of living index should be after the appointed day.We are, therefore, unable to agree with the High Court that the rise of cost of living index also should be after the appointed day. It is sufficient for the purpose of Explanation-I if payment of D.A., in consequence of rise of cost of living index, takes place after the appointed day on account of rise in the cost of living index even prior to the appointed day. The nexus for the purpose of Explana- tion-I is with the payment after the appointed day and not with the rise in the cost of living index. The specified percentage of additional D.A. which is 50% of the rise, being the difference, between Rs. 78/- and Rs. 88.50 is, therefore, deductible under section 6(2)(b) of the Act and the High Court was not correct in holding to the contrary.7.
### Response:
1
### Explanation:
It is clear under section 2(b) that additional D.A. has to be sanctioned after the appointed day. "Sanctioned" is the heart of the definition clause. Since additional D.A. is defined to mean such D.A. as may be sanctioned from time to time after the appointed day, Explanation-I to the definition is inserted to. deal with a situation to avoid any controversy about the sanction while there is an auto- matic rise in D.A. linked to a cost of living index. Where D.A. is linked to a cost of living index any automatic payment, after the appointed day, of D.A. in consequence of any rise in such cost of living index shall be deemed to be the additional D.A. In the absence of Explanation-I there would have been scope for controversy whether additional D.A. which is paid automatically with the rise in the cost of living index, as agreed upon, can be said to be D.A. sanctioned from time to time. Such a controversy is set at rest by insertion of Explanation-I which is a deeming clause.The question that arises for consideration in this appeal is whether -the rise in the cost of living index has also got to be after the appointed day. The union contends that the D.A. of Rs. 88.50 which is payable from 1st of July, 1974, for the quarter--1st July, 1974 to 30th September, 1974---is an pursuance of the rise of cost of living index between January to March 1974 which is prior to the appointed day, namely, 6th July, 1974. It is, therefore, submitted that no additional D.A. is deductible under the Act. The High Court has accepted the contention of the union and allowed the application under Article 226 of the. Constitution granting a Mandamus restraining the employer from deducting additional D.A. from the emoluments of the employees. The High Court also granted certificate to appeal to thisis common knowledge that when D.A. is linked to a cost of living index, actual determination of the D.A. takes place after the index is published and known. The index, therefore, is always of a past period by the yardstick of which D.A. is adjusted. This being the concept about link- age of D.A. to cost of living index, Explanation-I makes it clear that when payment of D.A. is linked to a cost of living index any automatic payment after the appointed day of D.A. in consequence of any rise in the cost of living index shall. notwithstanding the provisions of this clause, be deemed to be the additionalnon obstante clause in the Explanation takes note of the definition clause where sanction after the appointed day has been mentioned. Explanation-I therefore, plays its role, not withstanding whatever is stated in section 2(b), the definition clause. We do not find anything in Explanation-I to warrant the conclusion that rise of the cost of living index should be after the appointed day. What is to be after the appointed day is "any automatic payment of D.A. in consequence of any rise ...... "and not that any rise in the cost of living index should be after the appointed day.We are, therefore, unable to agree with the High Court that the rise of cost of living index also should be after the appointed day. It is sufficient for the purpose of Explanation-I if payment of D.A., in consequence of rise of cost of living index, takes place after the appointed day on account of rise in the cost of living index even prior to the appointed day. The nexus for the purpose of Explana- tion-I is with the payment after the appointed day and not with the rise in the cost of living index. The specified percentage of additional D.A. which is 50% of the rise, being the difference, between Rs. 78/- and Rs. 88.50 is, therefore, deductible under section 6(2)(b) of the Act and the High Court was not correct in holding to the contrary.
|
NAND KUMAR MANJHI AND ANR, ETC Vs. THE STATE OF BIHAR ETC | SCC 637 ( paragraphs 7 to 13) 8.5. Rule 22 of the Bihar Forest Service Rules, 1953 provides for the preparation of the Merit List on the basis of the aggregate marks secured by a candidate in the written examination as well as viva voce test. It provides that the Commission shall nominate such number of candidates from the merit list as may have been fixed by the Governor. There is no provision for maintaining a Wait List under the Bihar Forest Service Rules, 1953. Hence, the appointment of the Appellants was wholly illegal and contrary to the statutory rules. 8.6. In the background facts set out hereinabove, it is abundantly clear that the appointments of the Appellants were made beyond the vacancies advertised in 1985, which was in contravention of the well¬settled principle of law enunciated in Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637 ( paragraph 7). . The relevant extract from the decision of this Court in Rakhi Ray & Ors. v. High Court of Delhi & Ors. is reproduced hereinbelow for ready reference:"7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ?the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution , of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to ?improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale? , otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], Gujarat State Dy. Executive Engineers Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ], Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ] ).? (emphasis supplied)8.7. As a result of the persistent lobbying by the Appellants, they were able to secure appointment as ACFs on 13.04.1988 purportedly against the 1985 Advertisement. The appointment of the Appellants was wholly illegal, and in contravention of the Bihar Forest Service Rules, 1953. The posts advertised in 1985 were duly filled up by the selected candidates. The list of the 1985 advertisement stood fully exhausted. 8.8. A fresh selection of ACFs through direct recruitment was initiated pursuant to an advertisement in 1987. 8.9. While the recruitment process pursuant to the 1987 advertisement was underway, the State requested the Commission to forward 13 names from the list against the 1985 advertisement, which stood exhausted. The Commission forwarded the names of the Appellants, and some others purportedly from the list prepared pursuant to the 1985 advertisement vide letter dated 20.02.1988. This whole process was completely illegal, as the list of 1985 had got exhausted. 8.10. In 1987, 52 Forest Rangers were promoted as ACFs. Further appointments were made through direct recruitment and promotion in 1990, 1992, and 1995. 8.11. A proposal to regularise the services of the Appellants was initiated, taking a humanitarian view of the matter, since by then the Appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the Appellants as ACFs in 1988 was ?irregular?. However, the cancellation of the appointments at this juncture would result in further litigation, since it was made on the basis of a letter from the Commission. The proposal was approved by the Governor on 03.10.2005. The State granted confirmation to the Appellants vide Notification dated 04.10.2010 w.e.f. from the date of their regularisation i.e. 03.10.2005. 8.12. The State published the Final Seniority List on 02.07.2010. The Appellants were placed at the bottom of the Seniority List at Serial Nos. 321 to 338 i.e. below the 1987 Promotees, the Direct Recruits as well as Promotees of 1990, Respondent No. 10 – Hemkant Rai, the 1992 Promotees, and Promotees of 1995 on the basis of the date of regular appointment as ACF. 8.13. The Appellants raised objections to their position on the Seniority List, and claimed seniority from the date of their initial appointment on 13.04.1988 and continuous officiation till their regularisation w.e.f. 03.10.2005. 8.14. In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by the Appellants. The High Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules. | 0[ds]In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by theHigh Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules. | 0 | 5,072 | 164 | ### 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:
SCC 637 ( paragraphs 7 to 13) 8.5. Rule 22 of the Bihar Forest Service Rules, 1953 provides for the preparation of the Merit List on the basis of the aggregate marks secured by a candidate in the written examination as well as viva voce test. It provides that the Commission shall nominate such number of candidates from the merit list as may have been fixed by the Governor. There is no provision for maintaining a Wait List under the Bihar Forest Service Rules, 1953. Hence, the appointment of the Appellants was wholly illegal and contrary to the statutory rules. 8.6. In the background facts set out hereinabove, it is abundantly clear that the appointments of the Appellants were made beyond the vacancies advertised in 1985, which was in contravention of the well¬settled principle of law enunciated in Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637 ( paragraph 7). . The relevant extract from the decision of this Court in Rakhi Ray & Ors. v. High Court of Delhi & Ors. is reproduced hereinbelow for ready reference:"7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ?the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution , of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to ?improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale? , otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], Gujarat State Dy. Executive Engineers Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ], Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ] ).? (emphasis supplied)8.7. As a result of the persistent lobbying by the Appellants, they were able to secure appointment as ACFs on 13.04.1988 purportedly against the 1985 Advertisement. The appointment of the Appellants was wholly illegal, and in contravention of the Bihar Forest Service Rules, 1953. The posts advertised in 1985 were duly filled up by the selected candidates. The list of the 1985 advertisement stood fully exhausted. 8.8. A fresh selection of ACFs through direct recruitment was initiated pursuant to an advertisement in 1987. 8.9. While the recruitment process pursuant to the 1987 advertisement was underway, the State requested the Commission to forward 13 names from the list against the 1985 advertisement, which stood exhausted. The Commission forwarded the names of the Appellants, and some others purportedly from the list prepared pursuant to the 1985 advertisement vide letter dated 20.02.1988. This whole process was completely illegal, as the list of 1985 had got exhausted. 8.10. In 1987, 52 Forest Rangers were promoted as ACFs. Further appointments were made through direct recruitment and promotion in 1990, 1992, and 1995. 8.11. A proposal to regularise the services of the Appellants was initiated, taking a humanitarian view of the matter, since by then the Appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the Appellants as ACFs in 1988 was ?irregular?. However, the cancellation of the appointments at this juncture would result in further litigation, since it was made on the basis of a letter from the Commission. The proposal was approved by the Governor on 03.10.2005. The State granted confirmation to the Appellants vide Notification dated 04.10.2010 w.e.f. from the date of their regularisation i.e. 03.10.2005. 8.12. The State published the Final Seniority List on 02.07.2010. The Appellants were placed at the bottom of the Seniority List at Serial Nos. 321 to 338 i.e. below the 1987 Promotees, the Direct Recruits as well as Promotees of 1990, Respondent No. 10 – Hemkant Rai, the 1992 Promotees, and Promotees of 1995 on the basis of the date of regular appointment as ACF. 8.13. The Appellants raised objections to their position on the Seniority List, and claimed seniority from the date of their initial appointment on 13.04.1988 and continuous officiation till their regularisation w.e.f. 03.10.2005. 8.14. In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by the Appellants. The High Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules.
### Response:
0
### Explanation:
In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by theHigh Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules.
|
Balasaheb Vishnu Chavan Vs. State of Maharashtra and Others | (4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this sub-rule. Sub-rule (2 ) of Rule 5 which provides for the appointment of District Judges reads thus:"5. (2) District Judges and Judges of the Bombay City Civil Court-(i) District Judges-Appointments to the posts of District Judges shall be made by the Governor-(a) in consultation with the High Court by promotion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and(b) on the recommendation of the High Court from m embers of the Bar who have practised as advocates or pleaders for not less than seven years in the High Court, or Courts subordinate thereto:Provided that a person recruited at the age of not more than forty-five years, fifty years in the case of a person belonging to a community recognised as backward by Government for the purposes of recruitment, shall first be appointed to work as Assistant Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is appointed as a District Judge:Provided further that ordinarily the proportion of post filled in by promotion, under clause (a) and those by appointment from members of the Bar under clause (b) shall be 50: 50."5. Rule 5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the case of a person belonging to a backward community ) he shall first be appointed to work as Assistant Judge for such period as may be decided by the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case.No other ground is urged.6 | 0[ds]Rule 3 of the Rules provides that the Judicial Service in Maharashtra shall consist of two Branches-(a) the Junior Branch, and (b) the Senior Branch. The Junior Branch consists of the following class I Officers namely (1) Judges of the small Causes Courts at places other than Bombay; (2) Civil Judges (Senior Division); (3) Judges of the small Causes Courts at Bombay and Metropolitan Magistrates and (4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the case of a person belonging to a backward community ) he shall first be appointed to work as Assistant Judge for such period as may be decided by the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case. | 0 | 1,848 | 971 | ### 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:
(4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this sub-rule. Sub-rule (2 ) of Rule 5 which provides for the appointment of District Judges reads thus:"5. (2) District Judges and Judges of the Bombay City Civil Court-(i) District Judges-Appointments to the posts of District Judges shall be made by the Governor-(a) in consultation with the High Court by promotion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and(b) on the recommendation of the High Court from m embers of the Bar who have practised as advocates or pleaders for not less than seven years in the High Court, or Courts subordinate thereto:Provided that a person recruited at the age of not more than forty-five years, fifty years in the case of a person belonging to a community recognised as backward by Government for the purposes of recruitment, shall first be appointed to work as Assistant Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is appointed as a District Judge:Provided further that ordinarily the proportion of post filled in by promotion, under clause (a) and those by appointment from members of the Bar under clause (b) shall be 50: 50."5. Rule 5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the case of a person belonging to a backward community ) he shall first be appointed to work as Assistant Judge for such period as may be decided by the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case.No other ground is urged.6
### Response:
0
### Explanation:
Rule 3 of the Rules provides that the Judicial Service in Maharashtra shall consist of two Branches-(a) the Junior Branch, and (b) the Senior Branch. The Junior Branch consists of the following class I Officers namely (1) Judges of the small Causes Courts at places other than Bombay; (2) Civil Judges (Senior Division); (3) Judges of the small Causes Courts at Bombay and Metropolitan Magistrates and (4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the case of a person belonging to a backward community ) he shall first be appointed to work as Assistant Judge for such period as may be decided by the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case.
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S. P., Forest Cell, Adyar and Another Vs. Kannans Company | Leave granted. Heard learned counsel for the parties. The present appeal is directed against the order dated 2-9-1992, of the Single Judge in Writ Petition No. 12601 of 1992 filed by the respondent before the High Court of Judicature at Madras. The writ petition was allowed with the direction to the appellant to return the sandalwood seized on 30-8-1992 from the godown of the respondent Company at Alamathi Village, Thiruvallur Road, Red Hills, Madras-52. The respondent alleged in the writ petition that 8.508 ton sandalwood is seized by the present appellant illegally without ascertaining true facts as the sandalwood was validly with the respondent in terms of the licence and in accordance with law. The respondent referred to the two criminal cases, i.e., Criminal Cases Nos. 9 and 10 of 1992, one relating to the seizure of the lorry and the order to the seizure of the sandalwood. It seems the High Court went too far in writ jurisdiction to draw its inference on a subject-matter of criminal cases in which the seized sandalwood is the subject-matter of issue. The High Court records the following findings : "It is true that two criminal cases in Crime Nos. 9 and 10 of 1992 are pending against the petitioner Company. But that does not mean that the sandalwood products seized in this case to the extent of 8.508 ton is part and parcel of the materials of those criminal cases Simply because there is no official seal/manner mark or any mark on the sandalwoodes products seized from the petitioners godown, it cannot be said that sandalwood products seized is illicitly purchased or smuggled." * The High Court committed error in adjudicating the question, whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not the subject-matter of criminal cases. There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the respondent. Accordingly, the order of the learned Single Judge and the impugned judgment in writ appeal are hereby quashed. | 1[ds]The High Court committed error in adjudicating the question,whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not ther of criminal cases.There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the respondentThe High Court committed error in adjudicating the question,whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not ther of criminal cases.There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the | 1 | 639 | 642 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Leave granted. Heard learned counsel for the parties. The present appeal is directed against the order dated 2-9-1992, of the Single Judge in Writ Petition No. 12601 of 1992 filed by the respondent before the High Court of Judicature at Madras. The writ petition was allowed with the direction to the appellant to return the sandalwood seized on 30-8-1992 from the godown of the respondent Company at Alamathi Village, Thiruvallur Road, Red Hills, Madras-52. The respondent alleged in the writ petition that 8.508 ton sandalwood is seized by the present appellant illegally without ascertaining true facts as the sandalwood was validly with the respondent in terms of the licence and in accordance with law. The respondent referred to the two criminal cases, i.e., Criminal Cases Nos. 9 and 10 of 1992, one relating to the seizure of the lorry and the order to the seizure of the sandalwood. It seems the High Court went too far in writ jurisdiction to draw its inference on a subject-matter of criminal cases in which the seized sandalwood is the subject-matter of issue. The High Court records the following findings : "It is true that two criminal cases in Crime Nos. 9 and 10 of 1992 are pending against the petitioner Company. But that does not mean that the sandalwood products seized in this case to the extent of 8.508 ton is part and parcel of the materials of those criminal cases Simply because there is no official seal/manner mark or any mark on the sandalwoodes products seized from the petitioners godown, it cannot be said that sandalwood products seized is illicitly purchased or smuggled." * The High Court committed error in adjudicating the question, whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not the subject-matter of criminal cases. There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the respondent. Accordingly, the order of the learned Single Judge and the impugned judgment in writ appeal are hereby quashed.
### Response:
1
### Explanation:
The High Court committed error in adjudicating the question,whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not ther of criminal cases.There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the respondentThe High Court committed error in adjudicating the question,whether the sandalwood was legally or illegally seized or was or was not in wrongful possession or whether the seized sandalwood is or is not ther of criminal cases.There did not exist any evidence on record to decide or conclude any such above findings. Aggrieved by this judgment of learned Single Judge, a writ appeal was preferred by the appellant which was also dismissed. Aggrieved by this present appeal is filed. As we have observed, the High Court committed error in going into the questions and recording findings which it should not have done in exercise of its power under Article 226 of the Constitution of India. Not only High Court has decided disputed questions of fact but through its order has taken the property outside the reach of the criminal court. Accordingly, the said impugned orders are unsustainable in law. In fact the proper course open to the respondent was to move the criminal court under Section 451 of the Criminal Procedure Code in respect of the custody of the seized sandalwood. Admitted position is, the seized goods have been produced before the criminal court concerned, then for the custody of the same Section 451 of the Criminal Procedure Code is the proper course. This section empowers the criminal court to order for custody and disposal of property pending trial. Even if there be a dispute as in the present case whether the seized good is the property in the pending criminal case it is that criminal court alone which would be competent to adjudicate and decide the issue but not the High Court under its writ jurisdiction. In view of this, we find that the High Court has committed error in issuing the writ and granting the said relief to the
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