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Shri K. Ravindranathan Nair Vs. Commissioner Of Income-Tax, Ernakulam | is here by the special leave. 4. It needs to be noted that the Revenue had sought the reference of six questions. The Tribunal had disallowed its application insofar as it related to five questions on the basis that the one issue, that was covered by the question quoted above, had been split up into six questions. The Revenue did not file an application before the High Court under Section 256(2) seeking the reference of the rejected five questions. It is necessary to make a point of this because none of the six questions proceeded upon the basis that the Revenue considered the decision of the Tribunal on facts to be perverse; in other words, that it could not reasonably have been arrived at on the materials placed before the Tribunal. Alternatively, assuming that one or more of the questions did proceed upon that basis, the Revenue accepted the fact that they were not referred and did not carry the matter to the High Court. There was, therefore, no challenge by the Revenue to the facts found by the Tribunal before the High Court. 5. As we read the judgment of the Tribunal, it extensively analysed the documents placed before it and came to the conclusion that the ten units run by the assessee constituted a single business, that the four units in Kerala did not constitute a separate business and that, therefore, the payment that was made was not on account of closure of business, which would not be allowable under Section 37. The Tribunal found, on the basis of the accounts placed before it, that only one set of accounts were maintained for all the ten units. It found that there was one central financing system, that all the units were financed by banks and that these accounts were operated from the head office and that the cashew was purchased for processing by the head officer for all the units together. It was also found that there was unity of management and control. Accordingly, the Tribunal said that it was satisfied that all the units were fully inter-linked and inter-laced so that the inevitable inference was that all these units were one business alone. The Tribunal went on to hold that the facts were sufficient to establish a nexus between the payment of Rs. 4,18,107/- and the business. Because a part of the business had been affected by a labour disputes, for the industrial health of the business as a whole, it was though just and necessary that the industrial dispute in that one part of the business be stopped. This was the purpose for which the payment was made and it was, therefore, incurred for the purposes of the business. The Tribunal noted, correctly, that it was for the assessee to decide how he would conduct his business. For the purposes of continuing his business, he had to reduce the number of units from ten to six. Any incidental expense in reducing those units was an expenditure incurred in the course of conducting the business and allowable under Section 37. 6. The High Court, surprisingly, threw out all the findings of fact that were reached by the Tribunal. It did so because, in the High Courts view, the Tribunal had misdirected itself in law in arriving at these findings. This was because, according to the High Court, the Tribunal had over looked or ignored a clinching document and because it had wrongly cast the burden of proving the facts on a party. It is difficult to appreciate what that document was that the Tribunal had supposedly overlooked or how the High Court was entitled to look at it if it had not been placed before the Tribunal. It was erroneous to say that any burden had been incorrectly cast by the Tribunal because the Tribunal had evaluated all the material that was put before it, regardless of who had put it on the record. 7. The High Court overlooked the cardinal principle that it is the Tribunal which is the final fact finding authority. A decision on fact of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts is perverse, in the sense that it is such as could not reasonably have been arrived at on the material placed before the Tribunal. In this case, there was no such question before the High Court. Unless and until a finding of fact reached by the Tribunal is canvassed before the High Court in the manner set out above, the High Court is obliged to proceed upon the findings of fact reached by the Tribunal and to give an answer in law to the question of law that is before it.8. The only jurisdiction of the High Court in a reference application is to answer the questions of law that are placed before it. It is only when a finding of the Tribunal on fact is challenged as being perverse, in the sense set out above, that a question of law can be said to arise.9. The only argument, fairly, that has been raised before us by the Revenue is that this expenditure could not be said to have been incurred in the course of the business because the four Kerala units in respect of which the expenditure was incurred had been shut down by the assessee. This argument would be acceptable if the Tribunal had found that these four units constituted a separate business. Having regard to the finding that these and all the other units outside Kerala formed one business, the expenditure must be held to have been incurred in regard to such business.10. Upon the facts found by the Tribunal, there is no getting away from the fact that the expenditure of Rs. 4,18,107/- that was inferred by the assessee was a business expenditure and that the assessee was entitled to its deduction under Section 37. | 1[ds]6. The High Court, surprisingly, threw out all the findings of fact that were reached by the Tribunal. It did so because, in the High Courts view, the Tribunal had misdirected itself in law in arriving at these findings. This was because, according to the High Court, the Tribunal had over looked or ignored a clinching document and because it had wrongly cast the burden of proving the facts on a party. It is difficult to appreciate what that document was that the Tribunal had supposedly overlooked or how the High Court was entitled to look at it if it had not been placed before the Tribunal. It was erroneous to say that any burden had been incorrectly cast by the Tribunal because the Tribunal had evaluated all the material that was put before it, regardless of who had put it on the record.The High Court overlooked the cardinal principle that it is the Tribunal which is the final fact finding authority. A decision on fact of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts is perverse, in the sense that it is such as could not reasonably have been arrived at on the material placed before the Tribunal. In this case, there was no such question before the High Court. Unless and until a finding of fact reached by the Tribunal is canvassed before the High Court in the manner set out above, the High Court is obliged to proceed upon the findings of fact reached by the Tribunal and to give an answer in law to the question of law that is before it.8. The only jurisdiction of the High Court in a reference application is to answer the questions of law that are placed before it. It is only when a finding of the Tribunal on fact is challenged as being perverse, in the sense set out above, that a question of law can be said toargument would be acceptable if the Tribunal had found that these four units constituted a separate business. Having regard to the finding that these and all the other units outside Kerala formed one business, the expenditure must be held to have been incurred in regard to such business.10. Upon the facts found by the Tribunal, there is no getting away from the fact that the expenditure of Rs. 4,18,107/that was inferred by the assessee was a business expenditure and that the assessee was entitled to its deduction under Section 37. | 1 | 1,508 | 462 | ### Instruction:
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is here by the special leave. 4. It needs to be noted that the Revenue had sought the reference of six questions. The Tribunal had disallowed its application insofar as it related to five questions on the basis that the one issue, that was covered by the question quoted above, had been split up into six questions. The Revenue did not file an application before the High Court under Section 256(2) seeking the reference of the rejected five questions. It is necessary to make a point of this because none of the six questions proceeded upon the basis that the Revenue considered the decision of the Tribunal on facts to be perverse; in other words, that it could not reasonably have been arrived at on the materials placed before the Tribunal. Alternatively, assuming that one or more of the questions did proceed upon that basis, the Revenue accepted the fact that they were not referred and did not carry the matter to the High Court. There was, therefore, no challenge by the Revenue to the facts found by the Tribunal before the High Court. 5. As we read the judgment of the Tribunal, it extensively analysed the documents placed before it and came to the conclusion that the ten units run by the assessee constituted a single business, that the four units in Kerala did not constitute a separate business and that, therefore, the payment that was made was not on account of closure of business, which would not be allowable under Section 37. The Tribunal found, on the basis of the accounts placed before it, that only one set of accounts were maintained for all the ten units. It found that there was one central financing system, that all the units were financed by banks and that these accounts were operated from the head office and that the cashew was purchased for processing by the head officer for all the units together. It was also found that there was unity of management and control. Accordingly, the Tribunal said that it was satisfied that all the units were fully inter-linked and inter-laced so that the inevitable inference was that all these units were one business alone. The Tribunal went on to hold that the facts were sufficient to establish a nexus between the payment of Rs. 4,18,107/- and the business. Because a part of the business had been affected by a labour disputes, for the industrial health of the business as a whole, it was though just and necessary that the industrial dispute in that one part of the business be stopped. This was the purpose for which the payment was made and it was, therefore, incurred for the purposes of the business. The Tribunal noted, correctly, that it was for the assessee to decide how he would conduct his business. For the purposes of continuing his business, he had to reduce the number of units from ten to six. Any incidental expense in reducing those units was an expenditure incurred in the course of conducting the business and allowable under Section 37. 6. The High Court, surprisingly, threw out all the findings of fact that were reached by the Tribunal. It did so because, in the High Courts view, the Tribunal had misdirected itself in law in arriving at these findings. This was because, according to the High Court, the Tribunal had over looked or ignored a clinching document and because it had wrongly cast the burden of proving the facts on a party. It is difficult to appreciate what that document was that the Tribunal had supposedly overlooked or how the High Court was entitled to look at it if it had not been placed before the Tribunal. It was erroneous to say that any burden had been incorrectly cast by the Tribunal because the Tribunal had evaluated all the material that was put before it, regardless of who had put it on the record. 7. The High Court overlooked the cardinal principle that it is the Tribunal which is the final fact finding authority. A decision on fact of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts is perverse, in the sense that it is such as could not reasonably have been arrived at on the material placed before the Tribunal. In this case, there was no such question before the High Court. Unless and until a finding of fact reached by the Tribunal is canvassed before the High Court in the manner set out above, the High Court is obliged to proceed upon the findings of fact reached by the Tribunal and to give an answer in law to the question of law that is before it.8. The only jurisdiction of the High Court in a reference application is to answer the questions of law that are placed before it. It is only when a finding of the Tribunal on fact is challenged as being perverse, in the sense set out above, that a question of law can be said to arise.9. The only argument, fairly, that has been raised before us by the Revenue is that this expenditure could not be said to have been incurred in the course of the business because the four Kerala units in respect of which the expenditure was incurred had been shut down by the assessee. This argument would be acceptable if the Tribunal had found that these four units constituted a separate business. Having regard to the finding that these and all the other units outside Kerala formed one business, the expenditure must be held to have been incurred in regard to such business.10. Upon the facts found by the Tribunal, there is no getting away from the fact that the expenditure of Rs. 4,18,107/- that was inferred by the assessee was a business expenditure and that the assessee was entitled to its deduction under Section 37.
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6. The High Court, surprisingly, threw out all the findings of fact that were reached by the Tribunal. It did so because, in the High Courts view, the Tribunal had misdirected itself in law in arriving at these findings. This was because, according to the High Court, the Tribunal had over looked or ignored a clinching document and because it had wrongly cast the burden of proving the facts on a party. It is difficult to appreciate what that document was that the Tribunal had supposedly overlooked or how the High Court was entitled to look at it if it had not been placed before the Tribunal. It was erroneous to say that any burden had been incorrectly cast by the Tribunal because the Tribunal had evaluated all the material that was put before it, regardless of who had put it on the record.The High Court overlooked the cardinal principle that it is the Tribunal which is the final fact finding authority. A decision on fact of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts is perverse, in the sense that it is such as could not reasonably have been arrived at on the material placed before the Tribunal. In this case, there was no such question before the High Court. Unless and until a finding of fact reached by the Tribunal is canvassed before the High Court in the manner set out above, the High Court is obliged to proceed upon the findings of fact reached by the Tribunal and to give an answer in law to the question of law that is before it.8. The only jurisdiction of the High Court in a reference application is to answer the questions of law that are placed before it. It is only when a finding of the Tribunal on fact is challenged as being perverse, in the sense set out above, that a question of law can be said toargument would be acceptable if the Tribunal had found that these four units constituted a separate business. Having regard to the finding that these and all the other units outside Kerala formed one business, the expenditure must be held to have been incurred in regard to such business.10. Upon the facts found by the Tribunal, there is no getting away from the fact that the expenditure of Rs. 4,18,107/that was inferred by the assessee was a business expenditure and that the assessee was entitled to its deduction under Section 37.
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I.N.Saksena Vs. State Of Madhya Pradesh | had attained the age of 55 years on three months notice; otherwise we do not see why this was not included in the amendment when it was published on December 6, 1963.We may note in contrast that the contents of Para 3 of the memorandum were incorporated in the rule. We, therefore, hold that the memorandum of February 28, 1963 does not amount to rules under Art. 309; it contains merely executive instructions, and the only rule which the Government has made on the question of superannuation is by the notification of December 6, 1963. That rule would apply to the appellant and it does not empower the Government to retire Government servants over the age of 55 years on three months notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall in the face of the rule published on December 6, 1963.11. Then it is urged that if the memorandum of February 28, 1963 does not amount to rules under Art. 309, the appellant would have to retire in August 1963 and. therefore, could not take advantage of the rule published on December 6, 1963 fixing the age of retirement at 58. We are of opinion that there is no force in this contention. Fundamental Rule 56, as it existed before March 1, 1963, provided 55 years as the age of retirement. It further provided that a Government servant might be retained in service after that date with the sanction of the local Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances. It is clear, therefore, that it was open to Government to extend the date of retirement of a Government servant under F. R. 56 (a) or 56 (aa), if it so desired. It is true that the extension contemplated by this rule was generally for individuals and an individual order is passed in such a case. But we see nothing illegal if the Government came to the conclusion generally that services of all Government servants should be retained till the age of 58 in public interest. In such a case a general order would be enough and no individual orders need be passed. We are of opinion that the memorandum of February 28, 1963 is merely in the nature of such a general order of extension of service by Government under F. R. 56 as it existed on that date. It seems that the Government thought it proper in the public interest to retain all Government servants upto the age of 58 under F. R. 56 and these executive instructions he taken to provide such retention till a proper rule, as envisaged in the memorandum came to be made. As we have indicated already, we see nothing in F. R. 56 as it was which would in any way bar the Government from passing such a general order retaining the services of all Government servants upto the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that services of all Government servants should be retained upto the age of 58 years, we cannot see why the Government cannot pass a general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We, therefore, read the executive instructions contained in the memorandum as amounting to an order of Government retaining the services of all Government servants upto the age of 58 years subject to the conditions prescribed in the memorandum, till an appropriate rule as to age of superannuation is framed. Therefore, the appellant would continue in service after he attained the age of .55 years in August 1963. But when actually the rule came to be framed on November 29, 1963 it dropped the conditions mentioned in the memorandum; thereafter it, is that which would apply to him after it was published on December 6, 1963, and as that rule contained no reservation of any power in Government to retire a Government servant on three months notice without assigning any reason after the age of 55 years, the notice issued to the appellant must fall.12. Lastly it is urged that the appellant could be retired under the All India Services (Death-cum-Retirement Benefits) Rules, 1958. It is urged that those rules apply to District Judges in view of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Rule 7 (2) thereof provides that"the Rules and other provisions relating to pension and gratuity which apply to officers holding superior posts in the cadre of the Indian Administrative Service shall apply mutatis mutandis to District Judges also".We are of opinion that this provision can, only take in the rules which applied to officers holding superior posts in the cadre of the Indian Administrative Service on the date it came into force in 1956. The rule does not say that all future amendments to the Rules relating to officers holding superior posts in the cadre of the Indian Administrative Service shall also apply to District Judges appointed under the Madhya Pradesh Judicial Service (Classification Recruitment and Conditions of Service) Rules I955. In these circumstances the respondent cannot take advantage of the All India Services (Death-cum-Retirement Benefits) Rules, l958, particularly of a rule which came into force in 1963.13. Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months notice was introduced in those rules in August/September 1964, and the Government could not, therefore, take advantage of that rule at the time when the appellant was retired. | 1[ds]7. We are not prepared to extend the decisions of this Court on this aspect if the matter in the manner contended for by the appellant. Where an order requiring a Government servant to retire compulsory contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Art. 311. But where there are no express words in the order itself which throw any stigma on the Government servants we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on suchis no stigma here. The second part to which the appellant refers is nothing more than a direction from Government to the appointing authority that it will not use the above power except to weed out unsuitable employees after they have attained the age of 55 years. When, therefore, the order in question refers to the memorandum it really refers to the first part of Para. 5 wherein power is given to the appointing authority to retire a Government servant after he attains the age of 55 years on three months notice without assigning any reason. It may be mentioned that the order assigns no reason. In the circumstances we hold that as the order does not expressly contain any words from which any stigma can be inferred it cannot amount to an order of removal. What the appellant wants us to hold is that the mere fact that a Government servant is compulsorily retired before he reaches the age of superannuation is in itself a stigma. But this its against the consistent view of the Court that if the order of compulsory retirement before the age of superannuation contains no words of stigma it cannot be held to be a removal requiring action under Articleis, however clear that facts in that case with respect to the Resolution of November 15, 1919 were very different. In the first place the Resolution was published in the gazette of India while in the present case the memorandum, which has been treated by the High Court as amounting to rules made under Art. 309, has never been published in the gazette. As already indicated, it is only in the form of a letter to the Collectors with copies to the High Court, the Finance Department and the Accountant-General. Secondly, the Resolution of November 15, 1919 in terms said that it was announcing certain new rules relating to retiring pensions of certain officers in the services specified therein. The present memorandum is not in the form of rules. Further it is said definitely in Para. 7 of the memorandum that necessary amendments to the State Civil Service Regulation would be issued in due course. It is one thing to issue rules and thereafter incorporate them in the Civil Service Regulations: it is quite another thing to issue a memorandum of this nature which is merely a letter from Government to all the Collectors with the specific direction that necessary amendments to the State Civil Service Regulations will be issued in due course. It is true that the letter says that the order will have effect from March 1, 1963, but that does not make the memorandum of the State Government a rule issued under Art. 309, when it is said in the memorandum itself that necessary amendments to the State Civil Service Regulations will be issued in due course. We have already set out the relevant parts of the memorandum and the very first sentence shown that the memorandum is merely an executive direction and not a rule ,for we cannot understand how a rule could be in the following words,State Government have decided that the age of compulsory retirement of State Governments servants should be raised to 58 years."The very form of these words shows that it is conveying an executive decision of the State Government to Collectors to be followed by them and is not a rule issued under Art. 309 of the Constitution. The form in which a rule is issued under Art. 309 is clear from what happened on November 29, 1963 when the amendment was actually made. We have set out that already, and the contrast in the language would show that the latter was a rule while the former was merely an executive instruction by Government to its Collectors with a copy to the High Court, the Finance Department and theis true that the rule said so. It is not necessary for us to decide whether a rule of this kind which was notified on December 6, 1963 could be made retrospectively. If it could be made retrospectively. the notification of December 6, 1963 itself would make it retrospective and one need not go to the memorandum for that purpose. If it could not be made retrospectively, the fact that the notification of December 6, 1963 said that the rule had come into force from March 1, l963 would still not make the memorandum a rule. As we shall show later the memorandum could be legitimately justified as an executive order of Government in view of F. R .56 as it was upto February 28, 1963. We, therefore, see no reason to hold that this memorandum of February 28, 1963 which was never published in the gazette, which was in the form of a letter addressed to Collectors with a copy to the High Court, the Finance Department and the Accountant-General, and which itself said that necessary amendments to the State Civil Service Regulations will be issued in due course, was anything more than a mere executive instruction of Government. If there was any doubt about the matter, it is in our opinion removed by what happened when the amendment to F. R. 56 was made and published on December 6, 1963. That amendment has been set out by us above. It says nothing about what is contained in Para. 5 of the memorandum. If it was the intention of Government that the first part of Para. 5 of the memorandum should also form a part of the rule we fail to see why that was not inserted as a note, proviso or explanation to F. R. 56 when it was in terms amended on November 29, 1963 and the amendment was published in the gazette of December 6, 1963. The omission of the first part of Para. 5 from the notification is itself an indication that the memorandum of February 28, 1963 contained mere executive instructions. It may be that later Government decided not to include the first part of Para. 5 in the rule and, therefore it did not find place in the amendment of November 29. The analogy that the High Court has drawn between the Resolution of November15, 1919 which was discussed in Shyamlals case, 1955-1 SCR 26 : (AIR 1954 SC 369 ), does not, therefore ,apply and we are of opinion that the memorandum of February 28, 1963 contained merely executive instructions.10. The rule framed on the basis of these executive instructions does not contain the first part of para. 5. Apparently the Government dropped the idea of retiring compulsorily Government servants after they had attained the age of 55 years on three months notice; otherwise we do not see why this was not included in the amendment when it was published on December 6, 1963.We may note in contrast that the contents of Para 3 of the memorandum were incorporated in the rule. We, therefore, hold that the memorandum of February 28, 1963 does not amount to rules under Art. 309; it contains merely executive instructions, and the only rule which the Government has made on the question of superannuation is by the notification of December 6, 1963. That rule would apply to the appellant and it does not empower the Government to retire Government servants over the age of 55 years on three months notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall in the face of the rule published on December 6,are of opinion that there is no force in this contention. Fundamental Rule 56, as it existed before March 1, 1963, provided 55 years as the age of retirement. It further provided that a Government servant might be retained in service after that date with the sanction of the local Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances. It is clear, therefore, that it was open to Government to extend the date of retirement of a Government servant under F. R. 56 (a) or 56 (aa), if it so desired. It is true that the extension contemplated by this rule was generally for individuals and an individual order is passed in such a case. But we see nothing illegal if the Government came to the conclusion generally that services of all Government servants should be retained till the age of 58 in public interest. In such a case a general order would be enough and no individual orders need be passed. We are of opinion that the memorandum of February 28, 1963 is merely in the nature of such a general order of extension of service by Government under F. R. 56 as it existed on that date. It seems that the Government thought it proper in the public interest to retain all Government servants upto the age of 58 under F. R. 56 and these executive instructions he taken to provide such retention till a proper rule, as envisaged in the memorandum came to be made. As we have indicated already, we see nothing in F. R. 56 as it was which would in any way bar the Government from passing such a general order retaining the services of all Government servants upto the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that services of all Government servants should be retained upto the age of 58 years, we cannot see why the Government cannot pass a general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We, therefore, read the executive instructions contained in the memorandum as amounting to an order of Government retaining the services of all Government servants upto the age of 58 years subject to the conditions prescribed in the memorandum, till an appropriate rule as to age of superannuation is framed. Therefore, the appellant would continue in service after he attained the age of .55 years in August 1963. But when actually the rule came to be framed on November 29, 1963 it dropped the conditions mentioned in the memorandum; thereafter it, is that which would apply to him after it was published on December 6, 1963, and as that rule contained no reservation of any power in Government to retire a Government servant on three months notice without assigning any reason after the age of 55 years, the notice issued to the appellant must7 (2) thereof provides that"the Rules and other provisions relating to pension and gratuity which apply to officers holding superior posts in the cadre of the Indian Administrative Service shall apply mutatis mutandis to District Judges also".We are of opinion that this provision can, only take in the rules which applied to officers holding superior posts in the cadre of the Indian Administrative Service on the date it came into force in 1956. The rule does not say that all future amendments to the Rules relating to officers holding superior posts in the cadre of the Indian Administrative Service shall also apply to District Judges appointed under the Madhya Pradesh Judicial Service (Classification Recruitment and Conditions of Service) Rules I955. In these circumstances the respondent cannot take advantage of the All India Services (Death-cum-Retirement Benefits) Rules, l958, particularly of a rule which came into force in 1963.13. Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months notice was introduced in those rules in August/September 1964, and the Government could not, therefore, take advantage of that rule at the time when the appellant was retired. | 1 | 4,264 | 2,281 | ### Instruction:
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### Input:
had attained the age of 55 years on three months notice; otherwise we do not see why this was not included in the amendment when it was published on December 6, 1963.We may note in contrast that the contents of Para 3 of the memorandum were incorporated in the rule. We, therefore, hold that the memorandum of February 28, 1963 does not amount to rules under Art. 309; it contains merely executive instructions, and the only rule which the Government has made on the question of superannuation is by the notification of December 6, 1963. That rule would apply to the appellant and it does not empower the Government to retire Government servants over the age of 55 years on three months notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall in the face of the rule published on December 6, 1963.11. Then it is urged that if the memorandum of February 28, 1963 does not amount to rules under Art. 309, the appellant would have to retire in August 1963 and. therefore, could not take advantage of the rule published on December 6, 1963 fixing the age of retirement at 58. We are of opinion that there is no force in this contention. Fundamental Rule 56, as it existed before March 1, 1963, provided 55 years as the age of retirement. It further provided that a Government servant might be retained in service after that date with the sanction of the local Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances. It is clear, therefore, that it was open to Government to extend the date of retirement of a Government servant under F. R. 56 (a) or 56 (aa), if it so desired. It is true that the extension contemplated by this rule was generally for individuals and an individual order is passed in such a case. But we see nothing illegal if the Government came to the conclusion generally that services of all Government servants should be retained till the age of 58 in public interest. In such a case a general order would be enough and no individual orders need be passed. We are of opinion that the memorandum of February 28, 1963 is merely in the nature of such a general order of extension of service by Government under F. R. 56 as it existed on that date. It seems that the Government thought it proper in the public interest to retain all Government servants upto the age of 58 under F. R. 56 and these executive instructions he taken to provide such retention till a proper rule, as envisaged in the memorandum came to be made. As we have indicated already, we see nothing in F. R. 56 as it was which would in any way bar the Government from passing such a general order retaining the services of all Government servants upto the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that services of all Government servants should be retained upto the age of 58 years, we cannot see why the Government cannot pass a general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We, therefore, read the executive instructions contained in the memorandum as amounting to an order of Government retaining the services of all Government servants upto the age of 58 years subject to the conditions prescribed in the memorandum, till an appropriate rule as to age of superannuation is framed. Therefore, the appellant would continue in service after he attained the age of .55 years in August 1963. But when actually the rule came to be framed on November 29, 1963 it dropped the conditions mentioned in the memorandum; thereafter it, is that which would apply to him after it was published on December 6, 1963, and as that rule contained no reservation of any power in Government to retire a Government servant on three months notice without assigning any reason after the age of 55 years, the notice issued to the appellant must fall.12. Lastly it is urged that the appellant could be retired under the All India Services (Death-cum-Retirement Benefits) Rules, 1958. It is urged that those rules apply to District Judges in view of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Rule 7 (2) thereof provides that"the Rules and other provisions relating to pension and gratuity which apply to officers holding superior posts in the cadre of the Indian Administrative Service shall apply mutatis mutandis to District Judges also".We are of opinion that this provision can, only take in the rules which applied to officers holding superior posts in the cadre of the Indian Administrative Service on the date it came into force in 1956. The rule does not say that all future amendments to the Rules relating to officers holding superior posts in the cadre of the Indian Administrative Service shall also apply to District Judges appointed under the Madhya Pradesh Judicial Service (Classification Recruitment and Conditions of Service) Rules I955. In these circumstances the respondent cannot take advantage of the All India Services (Death-cum-Retirement Benefits) Rules, l958, particularly of a rule which came into force in 1963.13. Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months notice was introduced in those rules in August/September 1964, and the Government could not, therefore, take advantage of that rule at the time when the appellant was retired.
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of Para. 5 in the rule and, therefore it did not find place in the amendment of November 29. The analogy that the High Court has drawn between the Resolution of November15, 1919 which was discussed in Shyamlals case, 1955-1 SCR 26 : (AIR 1954 SC 369 ), does not, therefore ,apply and we are of opinion that the memorandum of February 28, 1963 contained merely executive instructions.10. The rule framed on the basis of these executive instructions does not contain the first part of para. 5. Apparently the Government dropped the idea of retiring compulsorily Government servants after they had attained the age of 55 years on three months notice; otherwise we do not see why this was not included in the amendment when it was published on December 6, 1963.We may note in contrast that the contents of Para 3 of the memorandum were incorporated in the rule. We, therefore, hold that the memorandum of February 28, 1963 does not amount to rules under Art. 309; it contains merely executive instructions, and the only rule which the Government has made on the question of superannuation is by the notification of December 6, 1963. That rule would apply to the appellant and it does not empower the Government to retire Government servants over the age of 55 years on three months notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall in the face of the rule published on December 6,are of opinion that there is no force in this contention. Fundamental Rule 56, as it existed before March 1, 1963, provided 55 years as the age of retirement. It further provided that a Government servant might be retained in service after that date with the sanction of the local Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances. It is clear, therefore, that it was open to Government to extend the date of retirement of a Government servant under F. R. 56 (a) or 56 (aa), if it so desired. It is true that the extension contemplated by this rule was generally for individuals and an individual order is passed in such a case. But we see nothing illegal if the Government came to the conclusion generally that services of all Government servants should be retained till the age of 58 in public interest. In such a case a general order would be enough and no individual orders need be passed. We are of opinion that the memorandum of February 28, 1963 is merely in the nature of such a general order of extension of service by Government under F. R. 56 as it existed on that date. It seems that the Government thought it proper in the public interest to retain all Government servants upto the age of 58 under F. R. 56 and these executive instructions he taken to provide such retention till a proper rule, as envisaged in the memorandum came to be made. As we have indicated already, we see nothing in F. R. 56 as it was which would in any way bar the Government from passing such a general order retaining the services of all Government servants upto the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that services of all Government servants should be retained upto the age of 58 years, we cannot see why the Government cannot pass a general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We, therefore, read the executive instructions contained in the memorandum as amounting to an order of Government retaining the services of all Government servants upto the age of 58 years subject to the conditions prescribed in the memorandum, till an appropriate rule as to age of superannuation is framed. Therefore, the appellant would continue in service after he attained the age of .55 years in August 1963. But when actually the rule came to be framed on November 29, 1963 it dropped the conditions mentioned in the memorandum; thereafter it, is that which would apply to him after it was published on December 6, 1963, and as that rule contained no reservation of any power in Government to retire a Government servant on three months notice without assigning any reason after the age of 55 years, the notice issued to the appellant must7 (2) thereof provides that"the Rules and other provisions relating to pension and gratuity which apply to officers holding superior posts in the cadre of the Indian Administrative Service shall apply mutatis mutandis to District Judges also".We are of opinion that this provision can, only take in the rules which applied to officers holding superior posts in the cadre of the Indian Administrative Service on the date it came into force in 1956. The rule does not say that all future amendments to the Rules relating to officers holding superior posts in the cadre of the Indian Administrative Service shall also apply to District Judges appointed under the Madhya Pradesh Judicial Service (Classification Recruitment and Conditions of Service) Rules I955. In these circumstances the respondent cannot take advantage of the All India Services (Death-cum-Retirement Benefits) Rules, l958, particularly of a rule which came into force in 1963.13. Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months notice was introduced in those rules in August/September 1964, and the Government could not, therefore, take advantage of that rule at the time when the appellant was retired.
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Shiva Jute Baling Ltd Vs. Hindley & Co. Ltd | that its directions are carried out regarding the furnishing of security or the making of deposit and when these conditions are fulfilled, it has then to declare the appeal finally admitted under Order45. Rule 8 of the Civil Procedure Code. The jurisdiction of the Supreme Court begins after the appeal is finally admitted.When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to furnishing of security or making of a deposit are complied with. That this is the true position will be clear from the procedural provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court.Order 13, Rule 8 of the Supreme Court Rules lays down :"After the grant of special leave to appeal by the Court, the Registrar shall transmit a certified copy of the order to the Court or tribunal appealed from."Rule 9 then says:"On receipt of the said order, the Court or tribunal appealed from shall, in the absence of any special directions in the order, act in accordance with the provisions contained in Order XLV of the Code, so far as applicable."It is to be noted here that although this rule does refer to the provisions of the order 45 of the Civil Procedure Code, these provisions are to be followed only so far as they are applicable.It is surely the duty of the High Court to see that security is furnished or a deposit is made in accordance with the directions of the Supreme Court and these directions are to be found in the order of the Supreme Court which the Registrar is bound to transmit to the High Court under Order 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal.They would come in the record as soon as they are transmitted by the Registrar in accordance with the rule of our Court mentioned above and would have to be included in the Paper Book when it is printed.The Registrar of the High Court undoubtedly took these orders as part of the record without the appellants filing them afresh, for he accepted the security and deposit of other moneys from the appellants on the basis of these orders. If there was any failure on the part of the appellants to furnish the security or to make the deposit in the way indicated in the order of the Supreme Court, it would have been the duty of the Registrar of the High Court to intimate these facts to the Registrar of the Supreme Court and the latter thereupon could take, steps for revoking the special leave as is contemplated by Order 13; Rule 12 of our Rules.In our opinion, it is also not necessary for the appellants to make a formal application for admission of the appeal in cases where special leave has been granted by the Supreme Court:and this appears clear from the provision of Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court which runs as follows:9 On the admission of an appeal to the Supreme Court whether by the order of this Court under Order XLV, Rule 8 of the Code, or by an order of the Supreme Court giving the appellant Special Leave to Appeal but subject in the latter case to the carrying out of the directions of the Supreme Court as to the security and the deposit of the amount required by Rule 5, notice of such admission shall be issued by the Registrar for service on the respondent on the record, whether he shall have appealed on the hearing of the application for a certificate under Order XLV, Rule 3 of the Code, or not. Such notice shall be served by the attorney for the appellant and an affidavit of due service thereof shall be filed by such attorney immediately after such service."The opening words of this rule plainly indicate that there could be admission of appeal either by order of the High Court under Order XLV, Rule 8 of the Civil Procedure Code or by the order of the Supreme Court itself giving special leave to appeal. As the order granting special leave itself lays down the conditions to be fulfilled by the appellants, the admission will be regarded as final only when the directions are complied with and as soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents. This notice is to be served by the attorney for the appellants and an affidavit of due service shall be filed by him immediately after the service is effected.7. In the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants. This was not done as the procedure to be followed was not correctly appreciated. It is true that the appellants remained idle for a considerable period of time even after they furnished security and did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any laches for which the special leave deserves to be rescinded.8. | 0[ds]His argument is that under Order 32, R. 9 of the Original Side Rules of the Calcutta High Court, a Supreme Court appeal must be deemed to have been admitted by the very order of this Court granting special leave and as soon as the appellants have carried out the directions of the Supreme Court regarding furnishing of security or making of other deposits as the case may be, it is incumbent upon the Registrar to issue a notice of the admission of the appeal for service upon the respondents. Such notice indeed has got to be served by the appellants attorney; but as no notice was at all issued by the Registrar in the present case as is contemplated by Rule 9 of Order 32 of the Original Side Rules of the Calcutta High Court, no blame could attach to the appellants for not taking further steps in the matter.The contention of Mr. Chatterjee appears to us to be well-founded and as it seems to us that doubts have arisen at times regarding the precise procedure to be followed in cases where an appeal comes to this court by special leave granted under Article 136 of the Constitution, it is necessary to examine the provisions bearing upon it as are contained in the Rules of the Supreme Court or of the High Court concerned read along with the relevant provisions of the Civil Procedure Code.6.Ordinarily when a High Court grants a certificate giving leave to a party to appeal to this Court, it is that Court which retains full control and jurisdiction over the subsequent proceedings relating to the prosecution of the appeal till the appeal is finally admitted. It is for the High Court to see that its directions are carried out regarding the furnishing of security or the making of deposit and when these conditions are fulfilled, it has then to declare the appeal finally admitted underRule 8 of the Civil Procedure Code. The jurisdiction of the Supreme Court begins after the appeal is finally admitted.When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to furnishing of security or making of a deposit are complied with. That this is the true position will be clear from the procedural provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court.Order 13, Rule 8 of the Supreme Courtis to be noted here that although this rule does refer to the provisions of the order 45 of the Civil Procedure Code, these provisions are to be followed only so far as they are applicable.It is surely the duty of the High Court to see that security is furnished or a deposit is made in accordance with the directions of the Supreme Court and these directions are to be found in the order of the Supreme Court which the Registrar is bound to transmit to the High Court under Order 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal.They would come in the record as soon as they are transmitted by the Registrar in accordance with the rule of our Court mentioned above and would have to be included in the Paper Book when it isour opinion, it is also not necessary for the appellants to make a formal application for admission of the appeal in cases where special leave has been granted by the Supreme Court:and this appears clear from the provision of Order 32, Rule 9 of the Original Side Rules of the Calcutta HighIn the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants. This was not done as the procedure to be followed was not correctly appreciated. It is true that the appellants remained idle for a considerable period of time even after they furnished security and did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any laches for which the special leave deserves to be rescinded. | 0 | 2,772 | 844 | ### Instruction:
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that its directions are carried out regarding the furnishing of security or the making of deposit and when these conditions are fulfilled, it has then to declare the appeal finally admitted under Order45. Rule 8 of the Civil Procedure Code. The jurisdiction of the Supreme Court begins after the appeal is finally admitted.When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to furnishing of security or making of a deposit are complied with. That this is the true position will be clear from the procedural provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court.Order 13, Rule 8 of the Supreme Court Rules lays down :"After the grant of special leave to appeal by the Court, the Registrar shall transmit a certified copy of the order to the Court or tribunal appealed from."Rule 9 then says:"On receipt of the said order, the Court or tribunal appealed from shall, in the absence of any special directions in the order, act in accordance with the provisions contained in Order XLV of the Code, so far as applicable."It is to be noted here that although this rule does refer to the provisions of the order 45 of the Civil Procedure Code, these provisions are to be followed only so far as they are applicable.It is surely the duty of the High Court to see that security is furnished or a deposit is made in accordance with the directions of the Supreme Court and these directions are to be found in the order of the Supreme Court which the Registrar is bound to transmit to the High Court under Order 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal.They would come in the record as soon as they are transmitted by the Registrar in accordance with the rule of our Court mentioned above and would have to be included in the Paper Book when it is printed.The Registrar of the High Court undoubtedly took these orders as part of the record without the appellants filing them afresh, for he accepted the security and deposit of other moneys from the appellants on the basis of these orders. If there was any failure on the part of the appellants to furnish the security or to make the deposit in the way indicated in the order of the Supreme Court, it would have been the duty of the Registrar of the High Court to intimate these facts to the Registrar of the Supreme Court and the latter thereupon could take, steps for revoking the special leave as is contemplated by Order 13; Rule 12 of our Rules.In our opinion, it is also not necessary for the appellants to make a formal application for admission of the appeal in cases where special leave has been granted by the Supreme Court:and this appears clear from the provision of Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court which runs as follows:9 On the admission of an appeal to the Supreme Court whether by the order of this Court under Order XLV, Rule 8 of the Code, or by an order of the Supreme Court giving the appellant Special Leave to Appeal but subject in the latter case to the carrying out of the directions of the Supreme Court as to the security and the deposit of the amount required by Rule 5, notice of such admission shall be issued by the Registrar for service on the respondent on the record, whether he shall have appealed on the hearing of the application for a certificate under Order XLV, Rule 3 of the Code, or not. Such notice shall be served by the attorney for the appellant and an affidavit of due service thereof shall be filed by such attorney immediately after such service."The opening words of this rule plainly indicate that there could be admission of appeal either by order of the High Court under Order XLV, Rule 8 of the Civil Procedure Code or by the order of the Supreme Court itself giving special leave to appeal. As the order granting special leave itself lays down the conditions to be fulfilled by the appellants, the admission will be regarded as final only when the directions are complied with and as soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents. This notice is to be served by the attorney for the appellants and an affidavit of due service shall be filed by him immediately after the service is effected.7. In the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants. This was not done as the procedure to be followed was not correctly appreciated. It is true that the appellants remained idle for a considerable period of time even after they furnished security and did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any laches for which the special leave deserves to be rescinded.8.
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His argument is that under Order 32, R. 9 of the Original Side Rules of the Calcutta High Court, a Supreme Court appeal must be deemed to have been admitted by the very order of this Court granting special leave and as soon as the appellants have carried out the directions of the Supreme Court regarding furnishing of security or making of other deposits as the case may be, it is incumbent upon the Registrar to issue a notice of the admission of the appeal for service upon the respondents. Such notice indeed has got to be served by the appellants attorney; but as no notice was at all issued by the Registrar in the present case as is contemplated by Rule 9 of Order 32 of the Original Side Rules of the Calcutta High Court, no blame could attach to the appellants for not taking further steps in the matter.The contention of Mr. Chatterjee appears to us to be well-founded and as it seems to us that doubts have arisen at times regarding the precise procedure to be followed in cases where an appeal comes to this court by special leave granted under Article 136 of the Constitution, it is necessary to examine the provisions bearing upon it as are contained in the Rules of the Supreme Court or of the High Court concerned read along with the relevant provisions of the Civil Procedure Code.6.Ordinarily when a High Court grants a certificate giving leave to a party to appeal to this Court, it is that Court which retains full control and jurisdiction over the subsequent proceedings relating to the prosecution of the appeal till the appeal is finally admitted. It is for the High Court to see that its directions are carried out regarding the furnishing of security or the making of deposit and when these conditions are fulfilled, it has then to declare the appeal finally admitted underRule 8 of the Civil Procedure Code. The jurisdiction of the Supreme Court begins after the appeal is finally admitted.When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to furnishing of security or making of a deposit are complied with. That this is the true position will be clear from the procedural provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court.Order 13, Rule 8 of the Supreme Courtis to be noted here that although this rule does refer to the provisions of the order 45 of the Civil Procedure Code, these provisions are to be followed only so far as they are applicable.It is surely the duty of the High Court to see that security is furnished or a deposit is made in accordance with the directions of the Supreme Court and these directions are to be found in the order of the Supreme Court which the Registrar is bound to transmit to the High Court under Order 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal.They would come in the record as soon as they are transmitted by the Registrar in accordance with the rule of our Court mentioned above and would have to be included in the Paper Book when it isour opinion, it is also not necessary for the appellants to make a formal application for admission of the appeal in cases where special leave has been granted by the Supreme Court:and this appears clear from the provision of Order 32, Rule 9 of the Original Side Rules of the Calcutta HighIn the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants. This was not done as the procedure to be followed was not correctly appreciated. It is true that the appellants remained idle for a considerable period of time even after they furnished security and did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order 32, Rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any laches for which the special leave deserves to be rescinded.
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Department Of Telecommunications Vs. Gujarat Coop.Milk Mkting. Federation Ltd | grant rebates to several subscribers. But that cannot be a ground for granting rebate in this case, as no irregularity was found in this case. The fact that in some case, some departmental employee had committed some tampering, is not a ground for inferring that there must have been tampering in this case. The High Court has inferred that the fault was with the department because it refused to refer the matter for CBI for investigation. The learned Single Judge has observed: “It is also required to be noted that the petitioner had requested for an investigation into the matter by Central Bureau of Investigation. According to the petitioner, if such an investigation is resorted to, it would unearth the mischief and it was further stated that the petitioner was ready and wiling to bear the costs thereof. Even this was not accepted by the respondent authority, which would indicate that the respondent did not want to go deep into the matter.” Reference to CBI is not a condition precedent for raising a bill, merely because the subscriber demands it.13. There was thus no ground for the High Court to interfere with the findings arrived at by the Arbitrator in exercising the power of judicial review. By assuming a non-existing appellate jurisdiction and by making wrong assumptions and drawing wrong inferences, the learned Single Judge has interfered with a reasoned arbitral award.14. We may next deal with the conclusion of the learned Single Judge that the award was invalid because it was made by an Arbitrator who was junior in rank, when compared to the officer who passed the appellate order dated 12.2.1998. It is a usual practice for the Government departments to have the employees of the department (high level officers unconnected with the contract) as Arbitrators. The mere fact that the Arbitrator is of a rank lower than the officer who rejected the claim of the subscriber would not invalidate the arbitration or can be a reason for imputing bias to the Arbitrator (see Secretary to Govt., Transport Department v. Munuswamy Mudaliar, 1988 SCC (Suppl.) 651 and Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd., VI (2009) SLT 571=III (2009) CLT 250 (SC)=2009 (8) SCC 520 ). In Indian Oil Corpn. Ltd. (supra) this Court held thus: “The fact that the named Arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named Arbitrator though a senior officer of the Government/statutory body/Government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a Government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract.” In this case, the Arbitrator had neither dealt with the matter at any point of time nor was he a subordinate of the appellate authority in the concerned telecom district who decided the matter. The bills related to a telephone installed at the premises in Anand/Nadiad falling within the jurisdiction of the General Manager Telecom Kheda Telecom District, Nadiad and the appellate order dated 12.2.1998 was passed by the General Manager of Kheda Telecom District, Nadiad. The Arbitrator was working as a Deputy General Manager (T) East & Arbitrator Ahmedabad Telecom District, not under the General Manager who passed the appellate order but in a different telecom district. Therefore, there was no justification for the learned Single Judge to hold that the award was invalid merely because the Arbitrator was of a rank lower than that of the officer who passed the appellate order. It should also be noted that the appeal was decided by the General Manager, Kheda Telecom district in pursuance of a direction of the High Court. Again in a subsequent proceeding the High Court directed that the matter should be referred to arbitration under Section 7B of the Act and accordingly the dispute was referred to arbitration and the departmental officer functioning as Arbitrator decided the matter. There is nothing irregular or erroneous in the said procedure.15. The last para discloses the learned Single Judge had virtually prejudged the matter and was prejudiced against the appellant. The learned Single Judge allowed himself to be swayed by the following irrelevant factors in deciding against the appellant: (i) the respondent had come up before the High Court thrice; and (ii) the department Counsel did not agree with the suggestion of the learned Single Judge to reconsider the bill amounts by issuing a revised bill on the basis of the average of the bills for last six months. The learned Single Judge proceeded on the basis that the attitude of the department was adamant and it was indulging in unnecessary litigation. The department was simply pursuing a legitimate claim. The matter had been decided by a statutory Arbitrator. Therefore if the department decided not to give up or reduce its claim that cannot be held against the department. The order shows that the learned Single Judge had tried virtually to force the department to agree for suggestions which obviously the officers and the Counsel for the department could not agree. Such attitude on the part of the High Court requires to be discouraged. Unfortunately the Division Bench did not examine any of these aspects and merely affirmed the decision of the learned Single Judge. | 1[ds]9. The learned Single Judge held that the Arbitrator had without any evidence assumed that the son or other family members of subscriber must have used the telephone available on account of plug/socket arrangement in every room as also an extra telephone, parallel lines for making theThe basis for the billing is not the said assumption or inference. The basis is the clear evidence consisting of the records of Telecom and the meters which showed that the billed calls, that is, the international party line calls, were regularly being made from the said telephone. The inference drawn by the Arbitrator that theson or other family members must have made the calls from a parallel line by using the plug and socket facility available in various rooms, has to be read in the context of the assertion of the subscriber that he had not made any such party calls. The Arbitrator had three facts before him : (1) that the department records showing that the disputed international party calls were made from the telephone in question regularly; (2) that the subscriber had plug and socket facility in several rooms with an extra telephone which could be used any time by any one in the house; and (3) that the subscriber had not made use of the STD/ISD dynamic lock facility, though available. Therefore when there was an assertion by the subscriber that he had not made any such calls, the Arbitrator merely made an inference from the proved facts that even if the subscriber had not made the calls, it was possible that his family members including his son (who had returned home a day prior to the commencement of ‘partycould have made such calls by using the plugs and sockets arrangement and parallel lines in several rooms without the knowledge of the subscriber. The Arbitrator was only dealing with a contention by the subscriber that he had not made any such calls and giving his reasons for rejecting such a contention.10. The learned Single Judge next inferred that even if such calls were being made earlier, after receiving the bill dated 1.4.1996, the subscriber would have naturally restricted any such calls; and the fact that even after receipt of the first bill, there were such ‘partyas was evident from the second bill, made it improbable that thephone was used for making such ‘partyand therefore it had to be inferred that someone else was mischievously using the said telephone connection for making unauthorised ISD calls. This inference is also contrary to facts. The first bill dated 1.4.1996 was for the period 16.1.1996 to 15.3.1996. Though the second bill dated 1.6.1996 was subsequent to complaint dated 25.4.1996, the said bill related to the period 16.3.1996 to 15.5.1996, major portion of which was prior to 25.4.1996. Further, the second bill was only for Rs. 91,929/as against the first bill for Rs.The amount of the second bill and the period for the second bill demonstrates that after receipt of first bill and complaint, there was in fact some kind of control and reduction in such phone calls. Therefore the inference by the learned Single Judge was absolutely baseless.11. The finding of the learned Single Judge that the Arbitrator had not given importance to the complaint in the letter dated 25.4.1996 that he had heard cross talk on the line is also incorrect. The Arbitrator has dealt with this matter. The simplest explanation is the existence offacility and parallel lines. If the parallel line was being used and the subscriber lifted the receiver, he would certainly hear the conversation or talk, which was not from any external source, but from the very same telephone.12. The last assumption by the learned Single Judge was with reference to an affidavit filed by the Telecom Department in some criminal proceeding against some departmental employee unconcerned with this case, admitting that its employee had tampered with the instruments for making international calls, and as a result the department had to grant rebates to several subscribers. But that cannot be a ground for granting rebate in this case, as no irregularity was found in this case. The fact that in some case, some departmental employee had committed some tampering, is not a ground for inferring that there must have been tampering in this case. The High Court has inferred that the fault was with the department because it refused to refer the matter for CBI for investigation. The learned Single Judge hasis also required to be noted that the petitioner had requested for an investigation into the matter by Central Bureau of Investigation. According to the petitioner, if such an investigation is resorted to, it would unearth the mischief and it was further stated that the petitioner was ready and wiling to bear the costs thereof. Even this was not accepted by the respondent authority, which would indicate that the respondent did not want to go deep into theto CBI is not a condition precedent for raising a bill, merely because the subscriber demands it.13. There was thus no ground for the High Court to interfere with the findings arrived at by the Arbitrator in exercising the power of judicial review. By assuming aappellate jurisdiction and by making wrong assumptions and drawing wrong inferences, the learned Single Judge has interfered with a reasoned arbitral award.14. We may next deal with the conclusion of the learned Single Judge that the award was invalid because it was made by an Arbitrator who was junior in rank, when compared to the officer who passed the appellate order dated 12.2.1998. It is a usual practice for the Government departments to have the employees of the department (high level officers unconnected with the contract) as Arbitrators. The mere fact that the Arbitrator is of a rank lower than the officer who rejected the claim of the subscriber would not invalidate the arbitration or can be a reason for imputing bias to the Arbitrator (see Secretary to Govt., Transport Department v. Munuswamy Mudaliar, 1988 SCC (Suppl.) 651 and Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd., VI (2009) SLT 571=III (2009) CLT 250 (SC)=2009 (8) SCC 520 ). In Indian Oil Corpn. Ltd. (supra) this Court heldfact that the named Arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of anif such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named Arbitrator though a senior officer of the Government/statutory body/Government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a Government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to thethis case, the Arbitrator had neither dealt with the matter at any point of time nor was he a subordinate of the appellate authority in the concerned telecom district who decided the matter. The bills related to a telephone installed at the premises in Anand/Nadiad falling within the jurisdiction of the General Manager Telecom Kheda Telecom District, Nadiad and the appellate order dated 12.2.1998 was passed by the General Manager of Kheda Telecom District, Nadiad. The Arbitrator was working as a Deputy General Manager (T) East & Arbitrator Ahmedabad Telecom District, not under the General Manager who passed the appellate order but in a different telecom district. Therefore, there was no justification for the learned Single Judge to hold that the award was invalid merely because the Arbitrator was of a rank lower than that of the officer who passed the appellate order. It should also be noted that the appeal was decided by the General Manager, Kheda Telecom district in pursuance of a direction of the High Court. Again in a subsequent proceeding the High Court directed that the matter should be referred to arbitration under Section 7B of the Act and accordingly the dispute was referred to arbitration and the departmental officer functioning as Arbitrator decided the matter. There is nothing irregular or erroneous in the said procedure.15. The last para discloses the learned Single Judge had virtually prejudged the matter and was prejudiced against the appellant. The learned Single Judge allowed himself to be swayed by the following irrelevant factors in deciding against the appellant: (i) the respondent had come up before the High Court thrice; and (ii) the department Counsel did not agree with the suggestion of the learned Single Judge to reconsider the bill amounts by issuing a revised bill on the basis of the average of the bills for last six months. The learned Single Judge proceeded on the basis that the attitude of the department was adamant and it was indulging in unnecessary litigation. The department was simply pursuing a legitimate claim. The matter had been decided by a statutory Arbitrator. Therefore if the department decided not to give up or reduce its claim that cannot be held against the department. The order shows that the learned Single Judge had tried virtually to force the department to agree for suggestions which obviously the officers and the Counsel for the department could not agree. Such attitude on the part of the High Court requires to be discouraged. Unfortunately the Division Bench did not examine any of these aspects and merely affirmed the decision of the learned Single Judge. | 1 | 4,101 | 1,790 | ### 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:
grant rebates to several subscribers. But that cannot be a ground for granting rebate in this case, as no irregularity was found in this case. The fact that in some case, some departmental employee had committed some tampering, is not a ground for inferring that there must have been tampering in this case. The High Court has inferred that the fault was with the department because it refused to refer the matter for CBI for investigation. The learned Single Judge has observed: “It is also required to be noted that the petitioner had requested for an investigation into the matter by Central Bureau of Investigation. According to the petitioner, if such an investigation is resorted to, it would unearth the mischief and it was further stated that the petitioner was ready and wiling to bear the costs thereof. Even this was not accepted by the respondent authority, which would indicate that the respondent did not want to go deep into the matter.” Reference to CBI is not a condition precedent for raising a bill, merely because the subscriber demands it.13. There was thus no ground for the High Court to interfere with the findings arrived at by the Arbitrator in exercising the power of judicial review. By assuming a non-existing appellate jurisdiction and by making wrong assumptions and drawing wrong inferences, the learned Single Judge has interfered with a reasoned arbitral award.14. We may next deal with the conclusion of the learned Single Judge that the award was invalid because it was made by an Arbitrator who was junior in rank, when compared to the officer who passed the appellate order dated 12.2.1998. It is a usual practice for the Government departments to have the employees of the department (high level officers unconnected with the contract) as Arbitrators. The mere fact that the Arbitrator is of a rank lower than the officer who rejected the claim of the subscriber would not invalidate the arbitration or can be a reason for imputing bias to the Arbitrator (see Secretary to Govt., Transport Department v. Munuswamy Mudaliar, 1988 SCC (Suppl.) 651 and Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd., VI (2009) SLT 571=III (2009) CLT 250 (SC)=2009 (8) SCC 520 ). In Indian Oil Corpn. Ltd. (supra) this Court held thus: “The fact that the named Arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named Arbitrator though a senior officer of the Government/statutory body/Government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a Government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract.” In this case, the Arbitrator had neither dealt with the matter at any point of time nor was he a subordinate of the appellate authority in the concerned telecom district who decided the matter. The bills related to a telephone installed at the premises in Anand/Nadiad falling within the jurisdiction of the General Manager Telecom Kheda Telecom District, Nadiad and the appellate order dated 12.2.1998 was passed by the General Manager of Kheda Telecom District, Nadiad. The Arbitrator was working as a Deputy General Manager (T) East & Arbitrator Ahmedabad Telecom District, not under the General Manager who passed the appellate order but in a different telecom district. Therefore, there was no justification for the learned Single Judge to hold that the award was invalid merely because the Arbitrator was of a rank lower than that of the officer who passed the appellate order. It should also be noted that the appeal was decided by the General Manager, Kheda Telecom district in pursuance of a direction of the High Court. Again in a subsequent proceeding the High Court directed that the matter should be referred to arbitration under Section 7B of the Act and accordingly the dispute was referred to arbitration and the departmental officer functioning as Arbitrator decided the matter. There is nothing irregular or erroneous in the said procedure.15. The last para discloses the learned Single Judge had virtually prejudged the matter and was prejudiced against the appellant. The learned Single Judge allowed himself to be swayed by the following irrelevant factors in deciding against the appellant: (i) the respondent had come up before the High Court thrice; and (ii) the department Counsel did not agree with the suggestion of the learned Single Judge to reconsider the bill amounts by issuing a revised bill on the basis of the average of the bills for last six months. The learned Single Judge proceeded on the basis that the attitude of the department was adamant and it was indulging in unnecessary litigation. The department was simply pursuing a legitimate claim. The matter had been decided by a statutory Arbitrator. Therefore if the department decided not to give up or reduce its claim that cannot be held against the department. The order shows that the learned Single Judge had tried virtually to force the department to agree for suggestions which obviously the officers and the Counsel for the department could not agree. Such attitude on the part of the High Court requires to be discouraged. Unfortunately the Division Bench did not examine any of these aspects and merely affirmed the decision of the learned Single Judge.
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1
### Explanation:
tampered with the instruments for making international calls, and as a result the department had to grant rebates to several subscribers. But that cannot be a ground for granting rebate in this case, as no irregularity was found in this case. The fact that in some case, some departmental employee had committed some tampering, is not a ground for inferring that there must have been tampering in this case. The High Court has inferred that the fault was with the department because it refused to refer the matter for CBI for investigation. The learned Single Judge hasis also required to be noted that the petitioner had requested for an investigation into the matter by Central Bureau of Investigation. According to the petitioner, if such an investigation is resorted to, it would unearth the mischief and it was further stated that the petitioner was ready and wiling to bear the costs thereof. Even this was not accepted by the respondent authority, which would indicate that the respondent did not want to go deep into theto CBI is not a condition precedent for raising a bill, merely because the subscriber demands it.13. There was thus no ground for the High Court to interfere with the findings arrived at by the Arbitrator in exercising the power of judicial review. By assuming aappellate jurisdiction and by making wrong assumptions and drawing wrong inferences, the learned Single Judge has interfered with a reasoned arbitral award.14. We may next deal with the conclusion of the learned Single Judge that the award was invalid because it was made by an Arbitrator who was junior in rank, when compared to the officer who passed the appellate order dated 12.2.1998. It is a usual practice for the Government departments to have the employees of the department (high level officers unconnected with the contract) as Arbitrators. The mere fact that the Arbitrator is of a rank lower than the officer who rejected the claim of the subscriber would not invalidate the arbitration or can be a reason for imputing bias to the Arbitrator (see Secretary to Govt., Transport Department v. Munuswamy Mudaliar, 1988 SCC (Suppl.) 651 and Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd., VI (2009) SLT 571=III (2009) CLT 250 (SC)=2009 (8) SCC 520 ). In Indian Oil Corpn. Ltd. (supra) this Court heldfact that the named Arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of anif such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named Arbitrator though a senior officer of the Government/statutory body/Government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a Government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to thethis case, the Arbitrator had neither dealt with the matter at any point of time nor was he a subordinate of the appellate authority in the concerned telecom district who decided the matter. The bills related to a telephone installed at the premises in Anand/Nadiad falling within the jurisdiction of the General Manager Telecom Kheda Telecom District, Nadiad and the appellate order dated 12.2.1998 was passed by the General Manager of Kheda Telecom District, Nadiad. The Arbitrator was working as a Deputy General Manager (T) East & Arbitrator Ahmedabad Telecom District, not under the General Manager who passed the appellate order but in a different telecom district. Therefore, there was no justification for the learned Single Judge to hold that the award was invalid merely because the Arbitrator was of a rank lower than that of the officer who passed the appellate order. It should also be noted that the appeal was decided by the General Manager, Kheda Telecom district in pursuance of a direction of the High Court. Again in a subsequent proceeding the High Court directed that the matter should be referred to arbitration under Section 7B of the Act and accordingly the dispute was referred to arbitration and the departmental officer functioning as Arbitrator decided the matter. There is nothing irregular or erroneous in the said procedure.15. The last para discloses the learned Single Judge had virtually prejudged the matter and was prejudiced against the appellant. The learned Single Judge allowed himself to be swayed by the following irrelevant factors in deciding against the appellant: (i) the respondent had come up before the High Court thrice; and (ii) the department Counsel did not agree with the suggestion of the learned Single Judge to reconsider the bill amounts by issuing a revised bill on the basis of the average of the bills for last six months. The learned Single Judge proceeded on the basis that the attitude of the department was adamant and it was indulging in unnecessary litigation. The department was simply pursuing a legitimate claim. The matter had been decided by a statutory Arbitrator. Therefore if the department decided not to give up or reduce its claim that cannot be held against the department. The order shows that the learned Single Judge had tried virtually to force the department to agree for suggestions which obviously the officers and the Counsel for the department could not agree. Such attitude on the part of the High Court requires to be discouraged. Unfortunately the Division Bench did not examine any of these aspects and merely affirmed the decision of the learned Single Judge.
|
RAJASTHAN STATE ELECTRICITY BOARD JAIPUR Vs. THE DY. COMMISSIONER OF INCOME TAX(ASSESSMENT) & ANR | following has been laid down: 9. On a cursory reading of the provision, it is clear that the object of Section 143(1- A) is the prevention of evasion of tax. By the introduction of this provision, persons who have filed returns in which they have sought to evade the tax properly payable by them is meant to have a deterrent effect and a hefty amount of 20% as additional income tax is payable on the difference between what is declared in the return and what is assessed to tax. 18. Relying on earlier judgment of this Court in K.P. Varghese v. ITO, (1981) 4 SCC 173 , this Court in the above case held that provisions of Section 143(1-A) should be made to apply only to tax evaders. In paragraphs 21 and 25 following was laid down: 21. In the present case, the question that arises before us is also as to whether bona fide assessees are caught within the net of Section 143(1-A). We hasten to add that unlike in J.K. Synthetics case, Section 143(1-A) has in fact been challenged on constitutional grounds before the High Court on the facts of the present case. This being the case, we feel that since the provision has the deterrent effect of preventing tax evasion, it should be made to apply only to tax evaders. In support of this proposition, we refer to the judgment in K.P. Varghese v. ITO. The Court in that case was concerned with the correct construction of Section 52(2) of the Income Tax Act: (K.P. Varghese case, SCC p. 179, para 4 : SCR p. 639) 52. (2) Without prejudice to the provisions of sub-section (1), if in the opinion of the Income Tax Officer the fair market value of a capital asset transferred by an assessee as on the date of the transfer exceeds the full value of the consideration declared by the assessee in respect of the transfer of such capital asset by an amount of not less than fifteen per cent of the value declared, the full value of the consideration for such capital asset shall, with the previous approval of the Inspecting Assistant Commissioner, be taken to be its fair market value on the date of its transfer. 25. Taking a cue from Varghese case, we therefore, hold that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. The burden of proving that the assessee has so attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. Subject to the aforesaid construction of Section 143(1-A), we uphold the retrospective clarificatory amendment of the said section and allow the appeals. The judgments of the Division Bench 2 of the Gauhati High Court are set aside. There will be no order as to costs. 19. This Court in the above case upheld the constitutional validity of Section 143(1-A) (as inserted by the Finance Act, 1993) subject to holding that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully by the assessee. 20. Applying the ratio of the above judgment in the present case, we need to find out as to whether 100% depreciation as mentioned in return filed by the assessee was a result of an attempt to evade tax lawfully payable by the assessee. 21. We have seen from the facts, as noted above, that even after dis-allowing 25% of the depreciation, the assessee in the return remained in loss and the 100% depreciation was claimed by the assessee in the return due to a bonafide mistake. By Taxation Laws (Amendment) Act, 1991, the depreciation in the case of Company was restricted to 75% which due to oversight was missed by the assessee while filing the return. The Commissioner of Income Tax by deciding the revision petition has also not made any observation to the effact that 100% depreciation claimed by the assessee was with intend to evade payment of tax lawfully payable by the assessee, rather the Commissioner in his order dated 31.03.1992 has observed that whenever adjustment is made, additional tax has to be charged @ 20% of the tax payable on such excess amount. 22. It is true that while interpreting a Tax Legislature the consequences and hardship are not looked into but the purpose and object by which taxing statutes have been enacted cannot be lost sight. This Court while considering the very same provision i.e. Section 143(1-A), its object and purpose and while upholding the provision held that the burden of proving that the assessee has attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. In the present case, not even whisper, that claim of 100% depreciation by the assessee, 25% of which was disallowed was with intend to evade tax. We cannot mechanically apply the provisions of Section 143(1-A) in the facts of the present case and in view of the categorical pronouncement by this Court in Commissioner of Income Tax, Gauhati vs. Sati Oil Udyog Limited and another(supra), where it is held that Section 143(1-A) can only be invoked when the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. In view of the above, we hold that mechanical application of Section 143(1-A) in the facts of the present case was uncalled for. | 1[ds]13. The amendments brought by Finance Act, 1993 with retrospective effect i.e. from 01.04.1989 are fully attracted with regard to assessment in question i.e. for assessment year 1991-92. The substituted sub- section (1-A) makes it clear that where the loss declared by an assessee had been reduced by reason of adjustments made under sub-section(1)(a), the provisions of sub-section (1-A) would apply. As noted above the Commissioner of Income Tax while rejecting the revision petition of the petitioner has taken the view that whenever adjustment is made, additional tax would be charged @ 20% of the tax payable on such excess amount. The excess amount refers to the increase in the income and by implication the reduction in loss where even after the addition there is negative income15. Prior to insertion of the above proviso the depreciation was not restricted to 75% of the amount calculated at the percentage on the written down value of such assets. The return was filed by the assessee on 31.12.1991, prior to which date the Taxation Laws (Amendment) Act, 1991 had come into operation. It was due to bonafide mistake and oversight that the assessee claimed 100% depreciation instead of 75%. The 100% depreciation of Rs.333,77,70,317/- was claimed on written down value of assets, 25% depreciation was, thus, disallowed restricting it to 75% and after reducing 25% of the depreciation loss remained to the extent of Rs.(-)3,43,94,90,393/-. Even as per reduction of 25% depreciation the return of loss income of the assessee remained. In claiming 100% depreciation the assessee claims that there was no intention to evade tax and the said claim was only a bonafide mistake. As noted above by the Finance Act, 1993 Section 143(1-A) was substituted with retrospective effect from 01.04.198916. Learned counsel for the Revenue has rightly submitted that object of Section 143(1-A) was the prevention of evasion of tax.The memorandum explaining the provisions of the Finance Bill as noted above was also to persuade to the assessee to file Income Tax Return carefully to avoid mistakes19. This Court in the above case upheld the constitutional validity of Section 143(1-A) (as inserted by the Finance Act, 1993) subject to holding that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully by the assessee21. We have seen from the facts, as noted above, that even after dis-allowing 25% of the depreciation, the assessee in the return remained in loss and the 100% depreciation was claimed by the assessee in the return due to a bonafide mistake. By Taxation Laws (Amendment) Act, 1991, the depreciation in the case of Company was restricted to 75% which due to oversight was missed by the assessee while filing the return. The Commissioner of Income Tax by deciding the revision petition has also not made any observation to the effact that 100% depreciation claimed by the assessee was with intend to evade payment of tax lawfully payable by the assessee, rather the Commissioner in his order dated 31.03.1992 has observed that whenever adjustment is made, additional tax has to be charged @ 20% of the tax payable on such excess amount22. It is true that while interpreting a Tax Legislature the consequences and hardship are not looked into but the purpose and object by which taxing statutes have been enacted cannot be lost sight. This Court while considering the very same provision i.e. Section 143(1-A), its object and purpose and while upholding the provision held that the burden of proving that the assessee has attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. In the present case, not even whisper, that claim of 100% depreciation by the assessee, 25% of which was disallowed was with intend to evade tax. We cannot mechanically apply the provisions of Section 143(1-A) in the facts of the present case and in view of the categorical pronouncement by this Court in Commissioner of Income Tax, Gauhati vs. Sati Oil Udyog Limited and another(supra), where it is held that Section 143(1-A) can only be invoked when the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. In view of the above, we hold that mechanical application of Section 143(1-A) in the facts of the present case was uncalled for. | 1 | 4,452 | 890 | ### 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:
following has been laid down: 9. On a cursory reading of the provision, it is clear that the object of Section 143(1- A) is the prevention of evasion of tax. By the introduction of this provision, persons who have filed returns in which they have sought to evade the tax properly payable by them is meant to have a deterrent effect and a hefty amount of 20% as additional income tax is payable on the difference between what is declared in the return and what is assessed to tax. 18. Relying on earlier judgment of this Court in K.P. Varghese v. ITO, (1981) 4 SCC 173 , this Court in the above case held that provisions of Section 143(1-A) should be made to apply only to tax evaders. In paragraphs 21 and 25 following was laid down: 21. In the present case, the question that arises before us is also as to whether bona fide assessees are caught within the net of Section 143(1-A). We hasten to add that unlike in J.K. Synthetics case, Section 143(1-A) has in fact been challenged on constitutional grounds before the High Court on the facts of the present case. This being the case, we feel that since the provision has the deterrent effect of preventing tax evasion, it should be made to apply only to tax evaders. In support of this proposition, we refer to the judgment in K.P. Varghese v. ITO. The Court in that case was concerned with the correct construction of Section 52(2) of the Income Tax Act: (K.P. Varghese case, SCC p. 179, para 4 : SCR p. 639) 52. (2) Without prejudice to the provisions of sub-section (1), if in the opinion of the Income Tax Officer the fair market value of a capital asset transferred by an assessee as on the date of the transfer exceeds the full value of the consideration declared by the assessee in respect of the transfer of such capital asset by an amount of not less than fifteen per cent of the value declared, the full value of the consideration for such capital asset shall, with the previous approval of the Inspecting Assistant Commissioner, be taken to be its fair market value on the date of its transfer. 25. Taking a cue from Varghese case, we therefore, hold that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. The burden of proving that the assessee has so attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. Subject to the aforesaid construction of Section 143(1-A), we uphold the retrospective clarificatory amendment of the said section and allow the appeals. The judgments of the Division Bench 2 of the Gauhati High Court are set aside. There will be no order as to costs. 19. This Court in the above case upheld the constitutional validity of Section 143(1-A) (as inserted by the Finance Act, 1993) subject to holding that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully by the assessee. 20. Applying the ratio of the above judgment in the present case, we need to find out as to whether 100% depreciation as mentioned in return filed by the assessee was a result of an attempt to evade tax lawfully payable by the assessee. 21. We have seen from the facts, as noted above, that even after dis-allowing 25% of the depreciation, the assessee in the return remained in loss and the 100% depreciation was claimed by the assessee in the return due to a bonafide mistake. By Taxation Laws (Amendment) Act, 1991, the depreciation in the case of Company was restricted to 75% which due to oversight was missed by the assessee while filing the return. The Commissioner of Income Tax by deciding the revision petition has also not made any observation to the effact that 100% depreciation claimed by the assessee was with intend to evade payment of tax lawfully payable by the assessee, rather the Commissioner in his order dated 31.03.1992 has observed that whenever adjustment is made, additional tax has to be charged @ 20% of the tax payable on such excess amount. 22. It is true that while interpreting a Tax Legislature the consequences and hardship are not looked into but the purpose and object by which taxing statutes have been enacted cannot be lost sight. This Court while considering the very same provision i.e. Section 143(1-A), its object and purpose and while upholding the provision held that the burden of proving that the assessee has attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. In the present case, not even whisper, that claim of 100% depreciation by the assessee, 25% of which was disallowed was with intend to evade tax. We cannot mechanically apply the provisions of Section 143(1-A) in the facts of the present case and in view of the categorical pronouncement by this Court in Commissioner of Income Tax, Gauhati vs. Sati Oil Udyog Limited and another(supra), where it is held that Section 143(1-A) can only be invoked when the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. In view of the above, we hold that mechanical application of Section 143(1-A) in the facts of the present case was uncalled for.
### Response:
1
### Explanation:
13. The amendments brought by Finance Act, 1993 with retrospective effect i.e. from 01.04.1989 are fully attracted with regard to assessment in question i.e. for assessment year 1991-92. The substituted sub- section (1-A) makes it clear that where the loss declared by an assessee had been reduced by reason of adjustments made under sub-section(1)(a), the provisions of sub-section (1-A) would apply. As noted above the Commissioner of Income Tax while rejecting the revision petition of the petitioner has taken the view that whenever adjustment is made, additional tax would be charged @ 20% of the tax payable on such excess amount. The excess amount refers to the increase in the income and by implication the reduction in loss where even after the addition there is negative income15. Prior to insertion of the above proviso the depreciation was not restricted to 75% of the amount calculated at the percentage on the written down value of such assets. The return was filed by the assessee on 31.12.1991, prior to which date the Taxation Laws (Amendment) Act, 1991 had come into operation. It was due to bonafide mistake and oversight that the assessee claimed 100% depreciation instead of 75%. The 100% depreciation of Rs.333,77,70,317/- was claimed on written down value of assets, 25% depreciation was, thus, disallowed restricting it to 75% and after reducing 25% of the depreciation loss remained to the extent of Rs.(-)3,43,94,90,393/-. Even as per reduction of 25% depreciation the return of loss income of the assessee remained. In claiming 100% depreciation the assessee claims that there was no intention to evade tax and the said claim was only a bonafide mistake. As noted above by the Finance Act, 1993 Section 143(1-A) was substituted with retrospective effect from 01.04.198916. Learned counsel for the Revenue has rightly submitted that object of Section 143(1-A) was the prevention of evasion of tax.The memorandum explaining the provisions of the Finance Bill as noted above was also to persuade to the assessee to file Income Tax Return carefully to avoid mistakes19. This Court in the above case upheld the constitutional validity of Section 143(1-A) (as inserted by the Finance Act, 1993) subject to holding that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully by the assessee21. We have seen from the facts, as noted above, that even after dis-allowing 25% of the depreciation, the assessee in the return remained in loss and the 100% depreciation was claimed by the assessee in the return due to a bonafide mistake. By Taxation Laws (Amendment) Act, 1991, the depreciation in the case of Company was restricted to 75% which due to oversight was missed by the assessee while filing the return. The Commissioner of Income Tax by deciding the revision petition has also not made any observation to the effact that 100% depreciation claimed by the assessee was with intend to evade payment of tax lawfully payable by the assessee, rather the Commissioner in his order dated 31.03.1992 has observed that whenever adjustment is made, additional tax has to be charged @ 20% of the tax payable on such excess amount22. It is true that while interpreting a Tax Legislature the consequences and hardship are not looked into but the purpose and object by which taxing statutes have been enacted cannot be lost sight. This Court while considering the very same provision i.e. Section 143(1-A), its object and purpose and while upholding the provision held that the burden of proving that the assessee has attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. In the present case, not even whisper, that claim of 100% depreciation by the assessee, 25% of which was disallowed was with intend to evade tax. We cannot mechanically apply the provisions of Section 143(1-A) in the facts of the present case and in view of the categorical pronouncement by this Court in Commissioner of Income Tax, Gauhati vs. Sati Oil Udyog Limited and another(supra), where it is held that Section 143(1-A) can only be invoked when the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. In view of the above, we hold that mechanical application of Section 143(1-A) in the facts of the present case was uncalled for.
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MOHAMMAD SALIMULLAH AND ANR Vs. UNION OF INDIA AND ORS | both of them are Rohingya refugees from Myanmar and they are housed in a refugees camp. They claim to have fled Myanmar in December-2011 when ethnic violence broke out. 5. It appears that persons similarly placed like the petitioners are housed in refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places in India. 6. On 8.08.2017 the Ministry of Home Affairs, Government of India issued a letter to the Chief Secretaries of all the State Governments/UT Administrations, advising them to sensitize all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes. It is this circular which prompted the petitioners to approach this Court with the above writ petition. 7. According to the petitioners, new circumstances have now arisen, as revealed by newspaper reports appearing in the first/second week of March 2021, to the effect that about 150-170 Rohingya refugees detained in a subjail in Jammu face deportation back to Myanmar. The reports that appeared in The Wire, The Hindu, The Indian Express and The Guardian are relied upon to show that there are more than about 6500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub-jail now converted into a holding centre. 8. The contention of the petitioners is (i) that the principle of nonrefoulement is part of the right guaranteed under Article 21 of the Constitution; (ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and (iii) that though India is not a signatory to the United Nations Convention on the Status of Refugees 1951, it is a party to the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights, 1966 and the Convention on the Rights of the Child 1992 and that therefore non-refoulement is a binding obligation. The petitioners also contend that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. 9. Heavy reliance is placed upon a recent Judgment of International Court of Justice in The Gambia vs. Myanmar dated 23.01.2020 to show that even the International Court has taken note of the genocide of Rohingyas in Myanmar and that the lives of these refugees are in serious danger, if they are deported. According to the petitioners, Rohingyas were persecuted in Myanmar even when an elected Government was in power and that now the elected Government has been over thrown by a military coup and that therefore the danger is imminent. 10. The Union of India has filed a reply contending inter alia (i) that a similar application in I.A. No.142725 of 2018 challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018; (ii) that persons for whose protection against deportation, the present application has been filed, are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946; (iii) that India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967; (iv) that the principle of non- refoulement is applicable only to contracting States; (v) that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants; (vi) that such influx has posed serious national security ramifications; (vii) that there is organized and well-orchestrated influx of illegal immigrants through various agents and touts for monetary considerations; (viii) that Section 3 of the Foreigners Act empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom; (ix) that though the rights guaranteed under Articles 14 and 21 may be available to non-citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens; (x) that the right of the Government to expel a foreigner is unlimited and absolute; and (xi) that intelligence agencies have raised serious concerns about the threat to the internal security of the country. 11. It is also contended on behalf of the Union of India that the decision of the International Court of Justice has no relevance to the present application and that the Union of India generally follows the procedure of notifying the Government of the country of origin of the foreigners and order their deportation only when confirmed by the Government of the country of origin that the persons concerned are citizens/nationals of that country and that they are entitled to come back. 12. We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country. 13. It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e). 14. Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam. | 1[ds]12. We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.13. It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).14. Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam. | 1 | 1,365 | 275 | ### 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:
both of them are Rohingya refugees from Myanmar and they are housed in a refugees camp. They claim to have fled Myanmar in December-2011 when ethnic violence broke out. 5. It appears that persons similarly placed like the petitioners are housed in refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places in India. 6. On 8.08.2017 the Ministry of Home Affairs, Government of India issued a letter to the Chief Secretaries of all the State Governments/UT Administrations, advising them to sensitize all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes. It is this circular which prompted the petitioners to approach this Court with the above writ petition. 7. According to the petitioners, new circumstances have now arisen, as revealed by newspaper reports appearing in the first/second week of March 2021, to the effect that about 150-170 Rohingya refugees detained in a subjail in Jammu face deportation back to Myanmar. The reports that appeared in The Wire, The Hindu, The Indian Express and The Guardian are relied upon to show that there are more than about 6500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub-jail now converted into a holding centre. 8. The contention of the petitioners is (i) that the principle of nonrefoulement is part of the right guaranteed under Article 21 of the Constitution; (ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and (iii) that though India is not a signatory to the United Nations Convention on the Status of Refugees 1951, it is a party to the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights, 1966 and the Convention on the Rights of the Child 1992 and that therefore non-refoulement is a binding obligation. The petitioners also contend that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. 9. Heavy reliance is placed upon a recent Judgment of International Court of Justice in The Gambia vs. Myanmar dated 23.01.2020 to show that even the International Court has taken note of the genocide of Rohingyas in Myanmar and that the lives of these refugees are in serious danger, if they are deported. According to the petitioners, Rohingyas were persecuted in Myanmar even when an elected Government was in power and that now the elected Government has been over thrown by a military coup and that therefore the danger is imminent. 10. The Union of India has filed a reply contending inter alia (i) that a similar application in I.A. No.142725 of 2018 challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018; (ii) that persons for whose protection against deportation, the present application has been filed, are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946; (iii) that India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967; (iv) that the principle of non- refoulement is applicable only to contracting States; (v) that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants; (vi) that such influx has posed serious national security ramifications; (vii) that there is organized and well-orchestrated influx of illegal immigrants through various agents and touts for monetary considerations; (viii) that Section 3 of the Foreigners Act empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom; (ix) that though the rights guaranteed under Articles 14 and 21 may be available to non-citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens; (x) that the right of the Government to expel a foreigner is unlimited and absolute; and (xi) that intelligence agencies have raised serious concerns about the threat to the internal security of the country. 11. It is also contended on behalf of the Union of India that the decision of the International Court of Justice has no relevance to the present application and that the Union of India generally follows the procedure of notifying the Government of the country of origin of the foreigners and order their deportation only when confirmed by the Government of the country of origin that the persons concerned are citizens/nationals of that country and that they are entitled to come back. 12. We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country. 13. It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e). 14. Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam.
### Response:
1
### Explanation:
12. We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.13. It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).14. Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam.
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Uttar Pradesh Co-Operative Federation Ltd Vs. M/S Sunder Brothers Of Delhi | necessarily that arbitrator has himself formed opinions. But though the contractor is bound by that contract, still he has a right to demand that, notwithstanding those pre-formed views of the engineer, that gentleman shall listen to argument and determine the matter submitted to him as fairly as he can as an honest man; and if it be shown in fact that there is any reasonable prospect that he will be so biassied as to be likely not to decide fairly upon those matters, then the contractor is allowed to escape from his bargain and to have the matters in dispute tried by one of the ordinary tribunals of the land. But I think he has more than that right. If, without any fault of his own, the engineer has put himself in such a position that it is not fitting or decorous or proper that he should act as arbitrator in any one or more of those disputes, the contractor has the right to appeal to a Court of law and they are entitled to say, in answer to an application to the Court to exercise the discretion which the 4th section of the Arbitration Act vests in them. "We are not satisfied that there is not some reason for not submitting these questions to the arbitrator". In the present case the question is, has that taken place?" Lord Moulton after tracing the growth of the law of arbitration made the following observations in his speech :"But, My Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing law of the land, and the law of the land applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position. We are carrying out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced." Lord Parker, after pointing out that S. 4 of the Arbitration Act gave a discretionary power to the Court to be exercised after it was satisfied that there was no sufficient reason why the matter should not be referred in accordance with the submission, expressed the following views :"In making up its mind on this point the Court must of course give due consideration to the contract between the parties; but it should, I think, always be remembered that the parties may have agreed to the submission precisely because of the discretionary power vested in the Court under the Arbitration Act. They may, very well, for instance, have said to themselves, "If in any particular case it would be unfair to allow the arbitration we are agreeing to proceed we shall have the protection of the Court." It is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under S. 34 of the Indian Arbitration Act, for there must be read in every such agreement an implied term or condition that it would be enforceable only if the Court, having due regard to the other surrounding circumstances, thinks fit in its discretion to enforce it. It is obvious that a party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated, the respondent has alleged in the present case that the Registrar, Cooperative Societies has approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the chairman of the defendant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under S. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit. 8. It is well established that where the discretion vested in the Court under S. 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial courts exercise of discretion. This principle is well established; but, as has been observed by Viscount Simon, L. C., in Charles Osenton and Co. v. Johnston, 1942 AC 130 at p. 138 :"The law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case." | 0[ds]It has been observed by the High Court that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co-operative Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act and therefore it was a fit case in which discretion of the court under S. 34 of the Indian Arbitration Act should be exercised in not staying the proceedings of the suit. In our opinion, the reasoning of the High Court has much substance6. There is also another reason why there should not be a stay of the proceedings under S. 34 of the Indian Arbitration Act. The suit was filed in 1954 and, though 12 years have elapsed nothing has been done in the suit and it will not be in the interest of speedy disposal of the suit between the parties if the proceedings in the suit are further stayed and the parties are referred to arbitrationThe legal position is that an order of stay of suit under S. 34 of the Indian Arbitration Act will not be granted if it can be shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute between the parties. It is, of course, the normal duty of the Court to hold the parties to the contract and to make them present their disputes to the forum of their choice but an order to stay the legal proceedings in a Court of law will not be granted if it is shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute. Reference may be made, in this connection, to the decision of the House of Lords in BristolCorporation v. John Aird and Co., 1913 AC241. This case was concerned with an application for stay of proceedings under S. 4 of the English Arbitration Act which is similar to S. 34 of the Indian Arbitration Act. Upon the settlement of the final account there arose a bona fide dispute of a substantial character between the contractor and the engineer, who was the arbitrator under the contract, involving a probable conflict of evidence between them. The House of Lords held affirming the decision of the Court of appeal, that the fact that the engineer, with out any fault of his own must necessarily be placed in the position of a judge and a witness is a sufficient reason why the matter should not be referred in accordance with the contractIt is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under S. 34 of the Indian Arbitration Act, for there must be read in every such agreement an implied term or condition that it would be enforceable only if the Court, having due regard to the other surrounding circumstances, thinks fit in its discretion to enforce it. It is obvious that a party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated, the respondent has alleged in the present case that the Registrar, Cooperative Societies has approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the chairman of the defendant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under S. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit8. It is well established that where the discretion vested in the Court under S. 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial courts exercise of discretion5. If the arbitration agreement is not to be treated as a statutory arbitration under S. 46 of the Arbitration Act but an arbitration agreement under S. 47 of the Act, then the procedure to be followed for the arbitration under that agreement will be that provided under theCooperative Societies Act andthe Rules framed thereunder. Under S. 47 of the Indian Arbitration Act the arbitration will be governed only by such rules of theCooperative Societies Act andrules framed thereunder as are not inconsistent with the provisions of the Indian Arbitration Act. In this connection it is necessary to refer to Rules 115, 116 and 117 of theCooperative SocietiesRules framed under S. 43 of theCooperative SocietiesAct. Rule 115 states as follows :Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past member, (ii) or between a member or a past member or persons so claiming and the society or its committee or any officer of the society, (iii) between the society or its committee and any officer of the society. and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar."Rule 116 provides :"The Registrar on receipt of a reference shall either decide the dispute himself, or refer it for decision to an arbitrator or to two joint arbitrators appointed by him or to three arbitrators, of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as chairman."Rule 117 states :"In case it is decided to appoint three arbitrators(i) The Registrar shall issue a notice calling on each of the parties to nominate one person as its nominee within 15 days of the receipt of the notice(ii) if a party consists of more than one person, such persons shall jointly make only one nomination(iii) if more than one person is nominated by a party the Registrar shall appoint either one of the nominees or some other person of his own choice as the nominee of that party(iv) if a party fails to nominate an arbitrator within the appointed time or if its nomination is not valid the Registrar may himself make the nomination,(v) if one of the arbitrators fails to attend or refuses to work as an arbitrator, the remaining arbitrators may decide the dispute. If two of the arbitrators fail to attend or refuse to work as arbitrators and the claim is not admitted the remaining arbitrator shall refer the case to the Registrar who may authorize him to give an award or appoint one or more arbitrators to proceed with the reference or he may decide the case himself" | 0 | 3,479 | 1,412 | ### 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:
necessarily that arbitrator has himself formed opinions. But though the contractor is bound by that contract, still he has a right to demand that, notwithstanding those pre-formed views of the engineer, that gentleman shall listen to argument and determine the matter submitted to him as fairly as he can as an honest man; and if it be shown in fact that there is any reasonable prospect that he will be so biassied as to be likely not to decide fairly upon those matters, then the contractor is allowed to escape from his bargain and to have the matters in dispute tried by one of the ordinary tribunals of the land. But I think he has more than that right. If, without any fault of his own, the engineer has put himself in such a position that it is not fitting or decorous or proper that he should act as arbitrator in any one or more of those disputes, the contractor has the right to appeal to a Court of law and they are entitled to say, in answer to an application to the Court to exercise the discretion which the 4th section of the Arbitration Act vests in them. "We are not satisfied that there is not some reason for not submitting these questions to the arbitrator". In the present case the question is, has that taken place?" Lord Moulton after tracing the growth of the law of arbitration made the following observations in his speech :"But, My Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing law of the land, and the law of the land applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position. We are carrying out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced." Lord Parker, after pointing out that S. 4 of the Arbitration Act gave a discretionary power to the Court to be exercised after it was satisfied that there was no sufficient reason why the matter should not be referred in accordance with the submission, expressed the following views :"In making up its mind on this point the Court must of course give due consideration to the contract between the parties; but it should, I think, always be remembered that the parties may have agreed to the submission precisely because of the discretionary power vested in the Court under the Arbitration Act. They may, very well, for instance, have said to themselves, "If in any particular case it would be unfair to allow the arbitration we are agreeing to proceed we shall have the protection of the Court." It is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under S. 34 of the Indian Arbitration Act, for there must be read in every such agreement an implied term or condition that it would be enforceable only if the Court, having due regard to the other surrounding circumstances, thinks fit in its discretion to enforce it. It is obvious that a party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated, the respondent has alleged in the present case that the Registrar, Cooperative Societies has approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the chairman of the defendant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under S. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit. 8. It is well established that where the discretion vested in the Court under S. 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial courts exercise of discretion. This principle is well established; but, as has been observed by Viscount Simon, L. C., in Charles Osenton and Co. v. Johnston, 1942 AC 130 at p. 138 :"The law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
### Response:
0
### Explanation:
decision of the House of Lords in BristolCorporation v. John Aird and Co., 1913 AC241. This case was concerned with an application for stay of proceedings under S. 4 of the English Arbitration Act which is similar to S. 34 of the Indian Arbitration Act. Upon the settlement of the final account there arose a bona fide dispute of a substantial character between the contractor and the engineer, who was the arbitrator under the contract, involving a probable conflict of evidence between them. The House of Lords held affirming the decision of the Court of appeal, that the fact that the engineer, with out any fault of his own must necessarily be placed in the position of a judge and a witness is a sufficient reason why the matter should not be referred in accordance with the contractIt is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under S. 34 of the Indian Arbitration Act, for there must be read in every such agreement an implied term or condition that it would be enforceable only if the Court, having due regard to the other surrounding circumstances, thinks fit in its discretion to enforce it. It is obvious that a party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated, the respondent has alleged in the present case that the Registrar, Cooperative Societies has approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the chairman of the defendant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under S. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit8. It is well established that where the discretion vested in the Court under S. 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial courts exercise of discretion5. If the arbitration agreement is not to be treated as a statutory arbitration under S. 46 of the Arbitration Act but an arbitration agreement under S. 47 of the Act, then the procedure to be followed for the arbitration under that agreement will be that provided under theCooperative Societies Act andthe Rules framed thereunder. Under S. 47 of the Indian Arbitration Act the arbitration will be governed only by such rules of theCooperative Societies Act andrules framed thereunder as are not inconsistent with the provisions of the Indian Arbitration Act. In this connection it is necessary to refer to Rules 115, 116 and 117 of theCooperative SocietiesRules framed under S. 43 of theCooperative SocietiesAct. Rule 115 states as follows :Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past member, (ii) or between a member or a past member or persons so claiming and the society or its committee or any officer of the society, (iii) between the society or its committee and any officer of the society. and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar."Rule 116 provides :"The Registrar on receipt of a reference shall either decide the dispute himself, or refer it for decision to an arbitrator or to two joint arbitrators appointed by him or to three arbitrators, of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as chairman."Rule 117 states :"In case it is decided to appoint three arbitrators(i) The Registrar shall issue a notice calling on each of the parties to nominate one person as its nominee within 15 days of the receipt of the notice(ii) if a party consists of more than one person, such persons shall jointly make only one nomination(iii) if more than one person is nominated by a party the Registrar shall appoint either one of the nominees or some other person of his own choice as the nominee of that party(iv) if a party fails to nominate an arbitrator within the appointed time or if its nomination is not valid the Registrar may himself make the nomination,(v) if one of the arbitrators fails to attend or refuses to work as an arbitrator, the remaining arbitrators may decide the dispute. If two of the arbitrators fail to attend or refuse to work as arbitrators and the claim is not admitted the remaining arbitrator shall refer the case to the Registrar who may authorize him to give an award or appoint one or more arbitrators to proceed with the reference or he may decide the case himself"
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India Cements Ltd Vs. Collector Of Central Excise | excise duty on the price of packing material used for packing of superfine cement which according to the appellant was paid under protest whereas according to the respondent, it was not paid under protest and therefore, the claim of refund is barred by time. 2. The brief facts necessary for determination are : The appellant-company is a manufacturer of superfine cement. The company preferred the claim for refund of Rs. 22, 43, 002.09 alleged to be duty on price of packing material of the aforesaid product paid during July 4, 1974 to March 1, 1975.3. This claim of refund was rejected by Assistant Collector of Central Excise Tirunelveli on the ground that Rule 11 of the Central Excise Rules, 1944 was applicable as duty was not paid under protest and the claim was barred by time. On appeal, the Appellate Collector of Custom and Central Excise by the judgment dated February 7, 1981 maintained the order passed by the Assistant Collector on the same ground of limitation, as the merits of the claim was not disputed by the department. This is clear from the following observations in the Appellate Collector s order :- "They based their claim on the Trade Notice no. 232/79 dated 29-10-1979 of Madras Collectorate declaring that the said cement is not the variety of cement requiring packing to prevent deterioration, and the cost of packing of such cement is not liable to be included in the assessable value. The ground on which the claim was made are not disputed in this appeal." 4. Thereafter, the appellant unsuccessfully approached the Customs, Excise and Gold (Control) Appellate Tribunal. Before the Tribunal also, only the question of limitation was put against the appellant. The Tribunal by its order dated July 25, 1984 has stated :-Before us, the only question argued was the question of limitation. It was urged that the letter dated 11-6-1974 amounted to a protest so that the period of limitation prescribed in Rule 11 of the Rules ceased to be applicable.5. The Tribunal also took the view that the letter dated June 11, 1974 was not a protest to save the period of limitation.6. Hence this appeal. 7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally said :- "If the department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges." 8. The counsel also referred to us the decision of the Central Government in the case of Birla Cement Works where a similar claim was allowed by order dated December 31, 1980. Counsel further referred to us the Trade Notice dated October 29, 1979 issued by the Collectorate, Madras wherein it was clearly indicated that the costs of packing was not liable to be included in the assessable value.9. Learned Additional Solicitor General frankly conceded that at the material time, there was no particular form prescribed for protesting against the levy or paying under protest. He also contended that if the letter is treated as a protest then the limitation prescribed under Rule 11 admittedly would not be applicable, but the Trade Notice issued by the Madras Collectorate on October 29, 1979 could not be given retrospective effect and, therefore, the matter should go back to the Tribunal for disposal on other questions.10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty.11. It is rather strange that learned Additional Solicitor General wants the matter to go back to the Tribunal for considering the effect of Trade Notice. The Central Government in their revisional order dated December 31, 1980 in the case of Birla Cement Works gave the benefit without any Trade Notice. There it was observed :- "In the circumstances Government accepted the petitioner s pleas and observe that superfine cement is nothing other than ordinary portland which is grounded to a very high fineness of not less than 3500 CM 2/gm and that this higher fineness does not lead to its deterioration without packing. The Government, therefore, accept the contention of the petitioners and hold that the impugned good being capable of being sold without packing like ordinary gray portland cement the cost of packing for superfine cement should not be added to the assessable value." 12. The authorities ought to have extended the view taken by the Central Government in the case of Birla Cement Works to all similar cases. Moreover, the Appellate Collector and the Tribunal clearly stated that the only question agitated before them was the question of limitation. The order does not indicate that the counsel for the Department or the departmental representative raised any other question on merits. Indeed no objection could have been raised on the merits of the matter in view of the order of the Central Government in the Birla Cement Works. | 1[ds]7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally saidthe department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges.The counsel also referred to us the decision of the Central Government in the case of Birla Cement Works where a similar claim was allowed by order dated December 31, 1980. Counsel further referred to us the Trade Notice dated October 29, 1979 issued by the Collectorate, Madras wherein it was clearly indicated that the costs of packing was not liable to be included in the assessable value.9. Learned Additional Solicitor General frankly conceded that at the material time, there was no particular form prescribed for protesting against the levy or paying under protest. He also contended that if the letter is treated as a protest then the limitation prescribed under Rule 11 admittedly would not be applicable, but the Trade Notice issued by the Madras Collectorate on October 29, 1979 could not be given retrospective effect and, therefore, the matter should go back to the Tribunal for disposal on other questions.10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty.11. It is rather strange that learned Additional Solicitor General wants the matter to go back to the Tribunal for considering the effect of Trade Notice. The Central Government in their revisional order dated December 31, 1980 in the case of Birla Cement Works gave the benefit without any Trade Notice. There it was observedthe circumstances Government accepted the petitioner s pleas and observe that superfine cement is nothing other than ordinary portland which is grounded to a very high fineness of not less than 3500 CM 2/gm and that this higher fineness does not lead to its deterioration without packing. The Government, therefore, accept the contention of the petitioners and hold that the impugned good being capable of being sold without packing like ordinary gray portland cement the cost of packing for superfine cement should not be added to the assessable value.The authorities ought to have extended the view taken by the Central Government in the case of Birla Cement Works to all similar cases. Moreover, the Appellate Collector and the Tribunal clearly stated that the only question agitated before them was the question of limitation. The order does not indicate that the counsel for the Department or the departmental representative raised any other question on merits. Indeed no objection could have been raised on the merits of the matter in view of the order of the Central Government in the Birla Cement Works. | 1 | 1,134 | 682 | ### 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:
excise duty on the price of packing material used for packing of superfine cement which according to the appellant was paid under protest whereas according to the respondent, it was not paid under protest and therefore, the claim of refund is barred by time. 2. The brief facts necessary for determination are : The appellant-company is a manufacturer of superfine cement. The company preferred the claim for refund of Rs. 22, 43, 002.09 alleged to be duty on price of packing material of the aforesaid product paid during July 4, 1974 to March 1, 1975.3. This claim of refund was rejected by Assistant Collector of Central Excise Tirunelveli on the ground that Rule 11 of the Central Excise Rules, 1944 was applicable as duty was not paid under protest and the claim was barred by time. On appeal, the Appellate Collector of Custom and Central Excise by the judgment dated February 7, 1981 maintained the order passed by the Assistant Collector on the same ground of limitation, as the merits of the claim was not disputed by the department. This is clear from the following observations in the Appellate Collector s order :- "They based their claim on the Trade Notice no. 232/79 dated 29-10-1979 of Madras Collectorate declaring that the said cement is not the variety of cement requiring packing to prevent deterioration, and the cost of packing of such cement is not liable to be included in the assessable value. The ground on which the claim was made are not disputed in this appeal." 4. Thereafter, the appellant unsuccessfully approached the Customs, Excise and Gold (Control) Appellate Tribunal. Before the Tribunal also, only the question of limitation was put against the appellant. The Tribunal by its order dated July 25, 1984 has stated :-Before us, the only question argued was the question of limitation. It was urged that the letter dated 11-6-1974 amounted to a protest so that the period of limitation prescribed in Rule 11 of the Rules ceased to be applicable.5. The Tribunal also took the view that the letter dated June 11, 1974 was not a protest to save the period of limitation.6. Hence this appeal. 7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally said :- "If the department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges." 8. The counsel also referred to us the decision of the Central Government in the case of Birla Cement Works where a similar claim was allowed by order dated December 31, 1980. Counsel further referred to us the Trade Notice dated October 29, 1979 issued by the Collectorate, Madras wherein it was clearly indicated that the costs of packing was not liable to be included in the assessable value.9. Learned Additional Solicitor General frankly conceded that at the material time, there was no particular form prescribed for protesting against the levy or paying under protest. He also contended that if the letter is treated as a protest then the limitation prescribed under Rule 11 admittedly would not be applicable, but the Trade Notice issued by the Madras Collectorate on October 29, 1979 could not be given retrospective effect and, therefore, the matter should go back to the Tribunal for disposal on other questions.10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty.11. It is rather strange that learned Additional Solicitor General wants the matter to go back to the Tribunal for considering the effect of Trade Notice. The Central Government in their revisional order dated December 31, 1980 in the case of Birla Cement Works gave the benefit without any Trade Notice. There it was observed :- "In the circumstances Government accepted the petitioner s pleas and observe that superfine cement is nothing other than ordinary portland which is grounded to a very high fineness of not less than 3500 CM 2/gm and that this higher fineness does not lead to its deterioration without packing. The Government, therefore, accept the contention of the petitioners and hold that the impugned good being capable of being sold without packing like ordinary gray portland cement the cost of packing for superfine cement should not be added to the assessable value." 12. The authorities ought to have extended the view taken by the Central Government in the case of Birla Cement Works to all similar cases. Moreover, the Appellate Collector and the Tribunal clearly stated that the only question agitated before them was the question of limitation. The order does not indicate that the counsel for the Department or the departmental representative raised any other question on merits. Indeed no objection could have been raised on the merits of the matter in view of the order of the Central Government in the Birla Cement Works.
### Response:
1
### Explanation:
7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally saidthe department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges.The counsel also referred to us the decision of the Central Government in the case of Birla Cement Works where a similar claim was allowed by order dated December 31, 1980. Counsel further referred to us the Trade Notice dated October 29, 1979 issued by the Collectorate, Madras wherein it was clearly indicated that the costs of packing was not liable to be included in the assessable value.9. Learned Additional Solicitor General frankly conceded that at the material time, there was no particular form prescribed for protesting against the levy or paying under protest. He also contended that if the letter is treated as a protest then the limitation prescribed under Rule 11 admittedly would not be applicable, but the Trade Notice issued by the Madras Collectorate on October 29, 1979 could not be given retrospective effect and, therefore, the matter should go back to the Tribunal for disposal on other questions.10. We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty.11. It is rather strange that learned Additional Solicitor General wants the matter to go back to the Tribunal for considering the effect of Trade Notice. The Central Government in their revisional order dated December 31, 1980 in the case of Birla Cement Works gave the benefit without any Trade Notice. There it was observedthe circumstances Government accepted the petitioner s pleas and observe that superfine cement is nothing other than ordinary portland which is grounded to a very high fineness of not less than 3500 CM 2/gm and that this higher fineness does not lead to its deterioration without packing. The Government, therefore, accept the contention of the petitioners and hold that the impugned good being capable of being sold without packing like ordinary gray portland cement the cost of packing for superfine cement should not be added to the assessable value.The authorities ought to have extended the view taken by the Central Government in the case of Birla Cement Works to all similar cases. Moreover, the Appellate Collector and the Tribunal clearly stated that the only question agitated before them was the question of limitation. The order does not indicate that the counsel for the Department or the departmental representative raised any other question on merits. Indeed no objection could have been raised on the merits of the matter in view of the order of the Central Government in the Birla Cement Works.
|
Indian Oil Corporation Ltd. and Ors Vs. T. Natarajan | by the observations of the Single Judge at best gave liberty to the Respondent to file a representation for re-consideration of his case for restoration of his dealership by the IOC but not beyond it. Indeed, according to learned Counsel, if the award had been in favour of the Respondent, then in such case, there was no need for the Arbitrator and Single Judge to give liberty to the Respondent to apply for re-consideration of his case. 27. In the third place, learned Counsel urged that once the IOC considered the case of the Respondent and found no case to grant him any relief much less the benefit of restoration of his dealership, the issue attained finality between the parties. 28. It was his submission that the Division Bench, in this circumstance, in its writ jurisdiction had no power to sit as an Appellate Court over the decision of the IOC and direct restoration of the Respondents dealership. 29. It is mainly these three submissions, the learned senior Counsel elaborated his submissions by referring to various documents on record. 30. In reply, Mr. Mohan Parasaran, learned senior Counsel, supported the impugned order and contended that the impugned order does not call for any interference and, therefore, the appeal deserves dismissal. 31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant. 32. The short question, which arises for consideration in this appeal, is whether the Division Bench was right in reversing the decision of the Single Judge (writ court). In other words, the question, which arises for consideration is whether the Division Bench was right in setting aside the letter dated 13.03.2013 of IOC which terminated the Respondents dealership and was, therefore, justified in issuing a mandamus against the IOC to restore the dealership of the Respondent herein and resume supply of fuel to his fuel station. 33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons. 34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent. 35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons. 36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings. 37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013. 38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court. 39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable. 40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside. 41. Learned senior Counsel for the Respondent then argued that the IOC has issued certain circulars providing therein as to how the cases of terminated dealership of any dealer is to be re-considered. This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above. | 1[ds]31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant.33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons.34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent.35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons.36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings.37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013.38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court.39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable.40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside.This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above. | 1 | 2,769 | 726 | ### 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:
by the observations of the Single Judge at best gave liberty to the Respondent to file a representation for re-consideration of his case for restoration of his dealership by the IOC but not beyond it. Indeed, according to learned Counsel, if the award had been in favour of the Respondent, then in such case, there was no need for the Arbitrator and Single Judge to give liberty to the Respondent to apply for re-consideration of his case. 27. In the third place, learned Counsel urged that once the IOC considered the case of the Respondent and found no case to grant him any relief much less the benefit of restoration of his dealership, the issue attained finality between the parties. 28. It was his submission that the Division Bench, in this circumstance, in its writ jurisdiction had no power to sit as an Appellate Court over the decision of the IOC and direct restoration of the Respondents dealership. 29. It is mainly these three submissions, the learned senior Counsel elaborated his submissions by referring to various documents on record. 30. In reply, Mr. Mohan Parasaran, learned senior Counsel, supported the impugned order and contended that the impugned order does not call for any interference and, therefore, the appeal deserves dismissal. 31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant. 32. The short question, which arises for consideration in this appeal, is whether the Division Bench was right in reversing the decision of the Single Judge (writ court). In other words, the question, which arises for consideration is whether the Division Bench was right in setting aside the letter dated 13.03.2013 of IOC which terminated the Respondents dealership and was, therefore, justified in issuing a mandamus against the IOC to restore the dealership of the Respondent herein and resume supply of fuel to his fuel station. 33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons. 34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent. 35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons. 36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings. 37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013. 38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court. 39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable. 40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside. 41. Learned senior Counsel for the Respondent then argued that the IOC has issued certain circulars providing therein as to how the cases of terminated dealership of any dealer is to be re-considered. This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above.
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31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant.33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons.34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent.35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons.36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings.37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013.38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court.39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable.40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside.This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above.
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State Of U.P. Vs. Hirendra Pal Singh Etc | Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 ). 20. In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439 , this Court explained the distinction between quashing of an order and staying the operation of the order observing as under: "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending." 21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance. 22. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740 , explained the distinction between repeal and amendment observing that amendment includes abrogation or deletion of a provision in an existing statutes. If the amendment of an existing law is small, the Act prefaces to amend; if it is extensive, it repeals and re-enacts it. 23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendment. Thus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under a non-existing law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are used. (Vide B.N. Tewari v. Union of India & Ors., AIR 1965 SC 1430 ; Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515 ; West U.P. Sugar Mills Association & Ors. v. State of U.P. & Ors., AIR 2002 SC 948 ; Zile Singh v. State of Haryana & Ors., (2004) 8 SCC 1 ; and State of Kerala & Anr. v. Peoples Union for Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46 ). (See also Ameer-un-Nissa Begum & Ors. v. Mahboob Begum & Ors., AIR 1955 SC 352 ; and India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors., AIR 1975 SC 155 ). 24. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR 1963 SC 928 , this Court while dealing with a similar issue held : "Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid." Therefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra). Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable. | 1[ds]18. The High Court vide impugned interim orders stayed the operation of the amended provisions of the L.R. Manual and directed the State authorities to consider the applications for renewal etc. under the unamended provisions, i.e., which stood repealed by the amendment dated 13.8.2008. The question does arise as to whether such a course is permissible to the High Court for the reason that it has been canvassed by Shri Patwalia that the clauses of the L.R. Manual which stood repealed do not survive any more and no direction could have been given by the High Court to act upon the19. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 )21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendmentThus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under ag law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are usedTherefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra)Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable. | 1 | 3,663 | 691 | ### 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:
Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 ). 20. In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439 , this Court explained the distinction between quashing of an order and staying the operation of the order observing as under: "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending." 21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance. 22. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740 , explained the distinction between repeal and amendment observing that amendment includes abrogation or deletion of a provision in an existing statutes. If the amendment of an existing law is small, the Act prefaces to amend; if it is extensive, it repeals and re-enacts it. 23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendment. Thus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under a non-existing law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are used. (Vide B.N. Tewari v. Union of India & Ors., AIR 1965 SC 1430 ; Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515 ; West U.P. Sugar Mills Association & Ors. v. State of U.P. & Ors., AIR 2002 SC 948 ; Zile Singh v. State of Haryana & Ors., (2004) 8 SCC 1 ; and State of Kerala & Anr. v. Peoples Union for Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46 ). (See also Ameer-un-Nissa Begum & Ors. v. Mahboob Begum & Ors., AIR 1955 SC 352 ; and India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors., AIR 1975 SC 155 ). 24. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR 1963 SC 928 , this Court while dealing with a similar issue held : "Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid." Therefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra). Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable.
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### Explanation:
18. The High Court vide impugned interim orders stayed the operation of the amended provisions of the L.R. Manual and directed the State authorities to consider the applications for renewal etc. under the unamended provisions, i.e., which stood repealed by the amendment dated 13.8.2008. The question does arise as to whether such a course is permissible to the High Court for the reason that it has been canvassed by Shri Patwalia that the clauses of the L.R. Manual which stood repealed do not survive any more and no direction could have been given by the High Court to act upon the19. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 )21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendmentThus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under ag law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are usedTherefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra)Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable.
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Commissioner of Income-Tax-8, Mumbai Vs. Chemosyn Limited | decision of the Tribunal in Kalpataru Construction Overseas (P.) Ltd. (supra) has been appealed to this Court and to which the answer was "we do not know".8. We find that on facts the impugned order of Tribunal has held that no income has been accrued or received of the value of 18000 sq.feet of constructed area under the development agreement dated 16.6.2006. This on account of the fact that the agreement dated 16.6.2006 was not acted upon as it came to be superseded/modified by the Tripartite agreement dated 6.7.2007. This was the position when the return of income was filed. The income accrued and earned under the subsequent agreement dated 6.7.2002 was offered as capital gains in the subsequent years. Therefore, on the application of the real income theory, the Tribunal held that on these facts there would be neither accrual nor receipt of income to warrant bringing to tax to the constructed area of 18,000 sq.ft which has not been received by the respondent-assessee. As observed by the Apex Court in CIT v. Shoorji Vallabhdas & Co. [1962] 46 ITR 144 :" Income-tax is a levy on income. No doubt, the Income-Tax Act takes into account two points of time at which the liability to tax is attracted viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about a hypothetical income which does not materialise. Where income tax, has in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account." (Emphasis supplied)Thus no income has either accrued or received in the form of 18000 sq.feet of constructed area. No occasion to tax the same can arise. The Tribunal on consideration of facts has reached a finding of fact that no income in respect of 18000 sq.ft of constructed area has been accrued or received. This finding cannot be said to be perverse or arbitrary. According to us no substantial question of law arises to warrant interference with the order of the Tribunal. Thus, question nos. 1 and 2 are dismissed.9. So far as the 2nd issue as raised in question nos. 3 and 5 with regard to the nature of expenditure, the brief facts are that there was a dispute between brothers who together owned the respondent-assessee company. As a consequence of differences between the two groups, the dispute reached the Company Law Board as well as the Supreme Court of India. Thereafter, a settlement was arrived at between the two warring groups of shareholders and as per directions of the Company Law Board the assessee-company was directed to buy 34 % shareholding of one of the warring group and cancel the same. The respondent-assessee had claimed before the Assessing Officer that the amount of Rs. 6.81 crores (being the difference between consideration paid and face value of the shares acquired for cancellation) was revenue expenditure. This on the basis that in view of the dispute between its shareholders, the business was adversely affected and therefore, the payment was expected to be incurred for purposes of business. However, the Assessing Officer did not accept the same and held the expenditure to be of capital nature and disallowed the claim of revenue expenditure.10. On appeal, the CIT (A) did not accept the respondent-assessees contention and upheld the order of the Assessing Officer. On further appeal, the Tribunal by the impugned order set aside the order of the Assessing Officer and the CIT (A)s orders by placing reliance upon its decision in Echjay Industries Ltd.v. Dy. CIT [2004] 88 TTJ 1089 (Mum.) and on identical facts and circumstances the expenditure incurred by the assessee company to purchase its shares was held to deductible as revenue expenditure. An appeal from the order of the Tribunal in Echjay Industries Ltd. (supra) was also dismissed by this Court. Besides, the Tribunal records a finding of fact that in view of the dispute between the two warring groups of shareholders the business of respondent assessee had suffered. It records that the total sales of the respondent-assessee which was in the range of Rs. 20 to 25 crores per annum during the pre-dispute period had come down to around Rs 9 crores in the financial year 1999-2000 when dispute arose and remained in the range of Rs. 10 to 14 crores during the period of litigation between its two groups of shareholders spanning over six years. It also records that after the settlement of dispute in the financial year 2005-06 there was a substantial increase in the sales touching nearly Rs. 18 crores per annum. The impugned order of the Tribunal also notes that after settlement of the dispute new products were launched by the respondent-assessee-company. All this was evidence of the fact that the dispute between two groups of shareholders had affected the business of the company.11. We find that the impugned order records a finding of fact that the amounts which were paid by the respondent assessee for the purpose of purchase of its shares, to its shareholder for subsequent cancellation was an expenditure incurred only to enable smooth running of the business. Thus, the expenditure was incurred for carrying on its business smoothly and therefore, was a deductible expenditure. Thus, the impugned order of the Tribunal is essentially a finding of fact. The respondents have not been able to show that these findings are in any manner perverse or arbitrary. Therefore, questions nos. 3 to 5 do not give arise to any substantial question of law. Thus, question nos. 3 to 5 are dismissed. | 0[ds]8. We find that on facts the impugned order of Tribunal has held that no income has been accrued or received of the value of 18000 sq.feet of constructed area under the development agreement dated 16.6.2006. This on account of the fact that the agreement dated 16.6.2006 was not acted upon as it came to be superseded/modified by the Tripartite agreement dated 6.7.2007. This was the position when the return of income was filed. The income accrued and earned under the subsequent agreement dated 6.7.2002 was offered as capital gains in the subsequent years. Therefore, on the application of the real income theory, the Tribunal held that on these facts there would be neither accrual nor receipt of income to warrant bringing to tax to the constructed area of 18,000 sq.ft which has not been received by theno income has either accrued or received in the form of 18000 sq.feet of constructed area. No occasion to tax the same can arise. The Tribunal on consideration of facts has reached a finding of fact that no income in respect of 18000 sq.ft of constructed area has been accrued or received. This finding cannot be said to be perverse or arbitrary. According to us no substantial question of law arises to warrant interference with the order of the Tribunal. Thus, question nos. 1 and 2 are dismissed.We find that the impugned order records a finding of fact that the amounts which were paid by the respondent assessee for the purpose of purchase of its shares, to its shareholder for subsequent cancellation was an expenditure incurred only to enable smooth running of the business. Thus, the expenditure was incurred for carrying on its business smoothly and therefore, was a deductible expenditure. Thus, the impugned order of the Tribunal is essentially a finding of fact. The respondents have not been able to show that these findings are in any manner perverse or arbitrary. Therefore, questions nos. 3 to 5 do not give arise to any substantial question of law. Thus, question nos. 3 to 5 are dismissed. | 0 | 2,383 | 376 | ### 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:
decision of the Tribunal in Kalpataru Construction Overseas (P.) Ltd. (supra) has been appealed to this Court and to which the answer was "we do not know".8. We find that on facts the impugned order of Tribunal has held that no income has been accrued or received of the value of 18000 sq.feet of constructed area under the development agreement dated 16.6.2006. This on account of the fact that the agreement dated 16.6.2006 was not acted upon as it came to be superseded/modified by the Tripartite agreement dated 6.7.2007. This was the position when the return of income was filed. The income accrued and earned under the subsequent agreement dated 6.7.2002 was offered as capital gains in the subsequent years. Therefore, on the application of the real income theory, the Tribunal held that on these facts there would be neither accrual nor receipt of income to warrant bringing to tax to the constructed area of 18,000 sq.ft which has not been received by the respondent-assessee. As observed by the Apex Court in CIT v. Shoorji Vallabhdas & Co. [1962] 46 ITR 144 :" Income-tax is a levy on income. No doubt, the Income-Tax Act takes into account two points of time at which the liability to tax is attracted viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about a hypothetical income which does not materialise. Where income tax, has in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account." (Emphasis supplied)Thus no income has either accrued or received in the form of 18000 sq.feet of constructed area. No occasion to tax the same can arise. The Tribunal on consideration of facts has reached a finding of fact that no income in respect of 18000 sq.ft of constructed area has been accrued or received. This finding cannot be said to be perverse or arbitrary. According to us no substantial question of law arises to warrant interference with the order of the Tribunal. Thus, question nos. 1 and 2 are dismissed.9. So far as the 2nd issue as raised in question nos. 3 and 5 with regard to the nature of expenditure, the brief facts are that there was a dispute between brothers who together owned the respondent-assessee company. As a consequence of differences between the two groups, the dispute reached the Company Law Board as well as the Supreme Court of India. Thereafter, a settlement was arrived at between the two warring groups of shareholders and as per directions of the Company Law Board the assessee-company was directed to buy 34 % shareholding of one of the warring group and cancel the same. The respondent-assessee had claimed before the Assessing Officer that the amount of Rs. 6.81 crores (being the difference between consideration paid and face value of the shares acquired for cancellation) was revenue expenditure. This on the basis that in view of the dispute between its shareholders, the business was adversely affected and therefore, the payment was expected to be incurred for purposes of business. However, the Assessing Officer did not accept the same and held the expenditure to be of capital nature and disallowed the claim of revenue expenditure.10. On appeal, the CIT (A) did not accept the respondent-assessees contention and upheld the order of the Assessing Officer. On further appeal, the Tribunal by the impugned order set aside the order of the Assessing Officer and the CIT (A)s orders by placing reliance upon its decision in Echjay Industries Ltd.v. Dy. CIT [2004] 88 TTJ 1089 (Mum.) and on identical facts and circumstances the expenditure incurred by the assessee company to purchase its shares was held to deductible as revenue expenditure. An appeal from the order of the Tribunal in Echjay Industries Ltd. (supra) was also dismissed by this Court. Besides, the Tribunal records a finding of fact that in view of the dispute between the two warring groups of shareholders the business of respondent assessee had suffered. It records that the total sales of the respondent-assessee which was in the range of Rs. 20 to 25 crores per annum during the pre-dispute period had come down to around Rs 9 crores in the financial year 1999-2000 when dispute arose and remained in the range of Rs. 10 to 14 crores during the period of litigation between its two groups of shareholders spanning over six years. It also records that after the settlement of dispute in the financial year 2005-06 there was a substantial increase in the sales touching nearly Rs. 18 crores per annum. The impugned order of the Tribunal also notes that after settlement of the dispute new products were launched by the respondent-assessee-company. All this was evidence of the fact that the dispute between two groups of shareholders had affected the business of the company.11. We find that the impugned order records a finding of fact that the amounts which were paid by the respondent assessee for the purpose of purchase of its shares, to its shareholder for subsequent cancellation was an expenditure incurred only to enable smooth running of the business. Thus, the expenditure was incurred for carrying on its business smoothly and therefore, was a deductible expenditure. Thus, the impugned order of the Tribunal is essentially a finding of fact. The respondents have not been able to show that these findings are in any manner perverse or arbitrary. Therefore, questions nos. 3 to 5 do not give arise to any substantial question of law. Thus, question nos. 3 to 5 are dismissed.
### Response:
0
### Explanation:
8. We find that on facts the impugned order of Tribunal has held that no income has been accrued or received of the value of 18000 sq.feet of constructed area under the development agreement dated 16.6.2006. This on account of the fact that the agreement dated 16.6.2006 was not acted upon as it came to be superseded/modified by the Tripartite agreement dated 6.7.2007. This was the position when the return of income was filed. The income accrued and earned under the subsequent agreement dated 6.7.2002 was offered as capital gains in the subsequent years. Therefore, on the application of the real income theory, the Tribunal held that on these facts there would be neither accrual nor receipt of income to warrant bringing to tax to the constructed area of 18,000 sq.ft which has not been received by theno income has either accrued or received in the form of 18000 sq.feet of constructed area. No occasion to tax the same can arise. The Tribunal on consideration of facts has reached a finding of fact that no income in respect of 18000 sq.ft of constructed area has been accrued or received. This finding cannot be said to be perverse or arbitrary. According to us no substantial question of law arises to warrant interference with the order of the Tribunal. Thus, question nos. 1 and 2 are dismissed.We find that the impugned order records a finding of fact that the amounts which were paid by the respondent assessee for the purpose of purchase of its shares, to its shareholder for subsequent cancellation was an expenditure incurred only to enable smooth running of the business. Thus, the expenditure was incurred for carrying on its business smoothly and therefore, was a deductible expenditure. Thus, the impugned order of the Tribunal is essentially a finding of fact. The respondents have not been able to show that these findings are in any manner perverse or arbitrary. Therefore, questions nos. 3 to 5 do not give arise to any substantial question of law. Thus, question nos. 3 to 5 are dismissed.
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Central Coal Fields Limited Etc Vs. Bhubaneswar Singh and Others | which the management of the coking coal mine.....remained vested in the Central Government." The present dispute is within the ambit of sub-s. (2) of s. 21. Section 22 provides the procedure for the statement of accounts to be drawn up in regard to the period of management Sub-s. (1), so far as relevant, runs thus:"22. (1) The Central Government or the Government company, (the appellants before us are Government companies), as the case may be, shall cause the books in relation to each coking coal mine...... the management of which has vested in it under the Coking Coal Mines (Emergency Provisions) Act, 1971, to be closed and balanced as on the 30th day of April, 1972, and shall cause a statement of accounts, as on that day, to be prepared, within such time, in such from an d in such manner as may be prescribed, in relation to each such mine......in respect of the transactions effected by it during the period for which the management of such coking coal mine.............remained vested in it..." (underlining ours) 5. In exercise of the powers conferred by clause (e) of sub-s. 12) of s.34 of the Nationalisation Act, the Central Government have made a set of Rules known as the Coking Co al Mines (Statement of Account) Rules, 1972. The Rules prescribe the form in which the accounts are to be prepared and reference to this form we shall presently make. A policy decision to nationalise the coking coal companies was taken by the Central Government and with a view to facilitating nationalisation, the management was first taken over under the Management Ordinance followed by the statute with effect from October 17, 1971. This position continued till the Nationalisation Act came into force with effect from May 1, 1972. The Nationalisation Act contemplated two types of payments to be made to the owner-one, a sum of money contemplated under s. 10 of the Act for the extinguishment of title, and two-the due s, if any, payable in respect of the period of management as contemplated under s. 21 (2) of the Act and arrived at on the basis of accounts prepared in the manner prescribed. The Management Act did not contemplate any kind of curtailment of the normal incidents of ownership except the right of management. Very appropriately, therefore, the Nationalisation Act contemplated the books of account to be closed and a statement of accounts, as on April 30, 1972, to be prepared, with a view to determining the final position for the period of management;-payment to be made to the owner if there was a surplus fund and recovery to be made from him in case of shortfall.We find force in the submission of Mr. Shanti Bhushan that t he accounting for the period between October 17, 1971 and April 30, 1972, in the absence of any particular prescribed mode in the statute or the Rules made thereunder, had to be done according to the normal commercial practice. Since the statute contemplated the books to be closed and balanced, a balance sheet according to the normal commercial practice had to be drawn up. The observations of this Court in Commissioner of Income tax, Madras v. A. Krishna Swami Mudaliar &Ors., are worth quoting. Shah, J. (as he then was), spoke for the Court thus:"But whichever method of book-keeping is adopted in the case of a trading venture, for computing the true profits of the year the stock-in-trade must be taken into account. If the value of stock-in-trade is not taken into account, in the ultimate result the profit or loss resulting from trading is bound to get absorbed or reflected in the stock-in-trade unless the value of the stock-in-trade remains unchanged at the commencement of the year and the end of the year." 6. Under the Income-tax Act profits have to be ascertained for the purpose of computing tax liability. Under the Nationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated a balance-sheet according to the commercial procedure to be drawn up which necessarily require d stock in trade to be reflected. 7. Admittedly the amount claimed from the owner represents the cost of extraction of the coal from the mine. The appellants had conceded before the High Court and Mr. Sinha appearing for them before us accept ed the position that if the extracted coal had been sold before the appointed day, the owner would have been entitled to the price. The mere fact that the extracted coal remained in stock at the commencement of the appointed date can make no difference to the position. The expenses were to be set off against the sale price of the stock to be received at the time of disposal. Therefore, the stock of coal had to be taken into account for balancing the position. Reliance on the definition of mine and S. 10 of the Nationalisation Act to counteract this conclusion cannot avail the appellants. Indeed, the submission advanced on behalf of the appellants is so much opposed to common sense logic of the matter that in the absence of a legislative mandate we have no hesitation in rejecting it.Much of the controversy could have been avoided if reference had been made to the statutory form. Statement 8 in the prescribed form clearly indicates that the stock as on April 30, 1972, had to be taken into account. We are sorry to observe that the High Court omitted to make a reference to it, and are equally sorry to note that the Government companies have failed to do their duty as cast on them by law and driven the owner to unnecessary litigation | 0[ds]Under the Income-tax Act profits have to be ascertained for the purpose of computing tax liability. Under the Nationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated a balance-sheet according to the commercial procedure to be drawn up which necessarily require d stock in trade to be reflectedAdmittedly the amount claimed from the owner represents the cost of extraction of the coal from the mine. The appellants had conceded before the High Court and Mr. Sinha appearing for them before us accept ed the position that if the extracted coal had been sold before the appointed day, the owner would have been entitled to the price. The mere fact that the extracted coal remained in stock at the commencement of the appointed date can make no difference to the position. The expenses were to be set off against the sale price of the stock to be received at the time of disposal. Therefore, the stock of coal had to be taken into account for balancing the position. Reliance on the definition of mine and S. 10 of the Nationalisation Act to counteract this conclusion cannot avail the appellants. Indeed, the submission advanced on behalf of the appellants is so much opposed to common sense logic of the matter that in the absence of a legislative mandate we have no hesitation in rejecting it.Much of the controversy could have been avoided if reference had been made to the statutory form. Statement 8 in the prescribed form clearly indicates that the stock as on April 30, 1972, had to be taken into account. We are sorry to observe that the High Court omitted to make a reference to it, and are equally sorry to note that the Government companies have failed to do their duty as cast on them by law and driven the owner to unnecessary litigationUnder thex Act profits have to be ascertained for the purpose of computing tax liability.Under theNationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated at according to the commercial procedure to be drawn up which necessarily require d stock in trade to be | 0 | 2,391 | 494 | ### 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:
which the management of the coking coal mine.....remained vested in the Central Government." The present dispute is within the ambit of sub-s. (2) of s. 21. Section 22 provides the procedure for the statement of accounts to be drawn up in regard to the period of management Sub-s. (1), so far as relevant, runs thus:"22. (1) The Central Government or the Government company, (the appellants before us are Government companies), as the case may be, shall cause the books in relation to each coking coal mine...... the management of which has vested in it under the Coking Coal Mines (Emergency Provisions) Act, 1971, to be closed and balanced as on the 30th day of April, 1972, and shall cause a statement of accounts, as on that day, to be prepared, within such time, in such from an d in such manner as may be prescribed, in relation to each such mine......in respect of the transactions effected by it during the period for which the management of such coking coal mine.............remained vested in it..." (underlining ours) 5. In exercise of the powers conferred by clause (e) of sub-s. 12) of s.34 of the Nationalisation Act, the Central Government have made a set of Rules known as the Coking Co al Mines (Statement of Account) Rules, 1972. The Rules prescribe the form in which the accounts are to be prepared and reference to this form we shall presently make. A policy decision to nationalise the coking coal companies was taken by the Central Government and with a view to facilitating nationalisation, the management was first taken over under the Management Ordinance followed by the statute with effect from October 17, 1971. This position continued till the Nationalisation Act came into force with effect from May 1, 1972. The Nationalisation Act contemplated two types of payments to be made to the owner-one, a sum of money contemplated under s. 10 of the Act for the extinguishment of title, and two-the due s, if any, payable in respect of the period of management as contemplated under s. 21 (2) of the Act and arrived at on the basis of accounts prepared in the manner prescribed. The Management Act did not contemplate any kind of curtailment of the normal incidents of ownership except the right of management. Very appropriately, therefore, the Nationalisation Act contemplated the books of account to be closed and a statement of accounts, as on April 30, 1972, to be prepared, with a view to determining the final position for the period of management;-payment to be made to the owner if there was a surplus fund and recovery to be made from him in case of shortfall.We find force in the submission of Mr. Shanti Bhushan that t he accounting for the period between October 17, 1971 and April 30, 1972, in the absence of any particular prescribed mode in the statute or the Rules made thereunder, had to be done according to the normal commercial practice. Since the statute contemplated the books to be closed and balanced, a balance sheet according to the normal commercial practice had to be drawn up. The observations of this Court in Commissioner of Income tax, Madras v. A. Krishna Swami Mudaliar &Ors., are worth quoting. Shah, J. (as he then was), spoke for the Court thus:"But whichever method of book-keeping is adopted in the case of a trading venture, for computing the true profits of the year the stock-in-trade must be taken into account. If the value of stock-in-trade is not taken into account, in the ultimate result the profit or loss resulting from trading is bound to get absorbed or reflected in the stock-in-trade unless the value of the stock-in-trade remains unchanged at the commencement of the year and the end of the year." 6. Under the Income-tax Act profits have to be ascertained for the purpose of computing tax liability. Under the Nationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated a balance-sheet according to the commercial procedure to be drawn up which necessarily require d stock in trade to be reflected. 7. Admittedly the amount claimed from the owner represents the cost of extraction of the coal from the mine. The appellants had conceded before the High Court and Mr. Sinha appearing for them before us accept ed the position that if the extracted coal had been sold before the appointed day, the owner would have been entitled to the price. The mere fact that the extracted coal remained in stock at the commencement of the appointed date can make no difference to the position. The expenses were to be set off against the sale price of the stock to be received at the time of disposal. Therefore, the stock of coal had to be taken into account for balancing the position. Reliance on the definition of mine and S. 10 of the Nationalisation Act to counteract this conclusion cannot avail the appellants. Indeed, the submission advanced on behalf of the appellants is so much opposed to common sense logic of the matter that in the absence of a legislative mandate we have no hesitation in rejecting it.Much of the controversy could have been avoided if reference had been made to the statutory form. Statement 8 in the prescribed form clearly indicates that the stock as on April 30, 1972, had to be taken into account. We are sorry to observe that the High Court omitted to make a reference to it, and are equally sorry to note that the Government companies have failed to do their duty as cast on them by law and driven the owner to unnecessary litigation
### Response:
0
### Explanation:
Under the Income-tax Act profits have to be ascertained for the purpose of computing tax liability. Under the Nationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated a balance-sheet according to the commercial procedure to be drawn up which necessarily require d stock in trade to be reflectedAdmittedly the amount claimed from the owner represents the cost of extraction of the coal from the mine. The appellants had conceded before the High Court and Mr. Sinha appearing for them before us accept ed the position that if the extracted coal had been sold before the appointed day, the owner would have been entitled to the price. The mere fact that the extracted coal remained in stock at the commencement of the appointed date can make no difference to the position. The expenses were to be set off against the sale price of the stock to be received at the time of disposal. Therefore, the stock of coal had to be taken into account for balancing the position. Reliance on the definition of mine and S. 10 of the Nationalisation Act to counteract this conclusion cannot avail the appellants. Indeed, the submission advanced on behalf of the appellants is so much opposed to common sense logic of the matter that in the absence of a legislative mandate we have no hesitation in rejecting it.Much of the controversy could have been avoided if reference had been made to the statutory form. Statement 8 in the prescribed form clearly indicates that the stock as on April 30, 1972, had to be taken into account. We are sorry to observe that the High Court omitted to make a reference to it, and are equally sorry to note that the Government companies have failed to do their duty as cast on them by law and driven the owner to unnecessary litigationUnder thex Act profits have to be ascertained for the purpose of computing tax liability.Under theNationalisation Act the books had to be balanced with a view to finding out whether the Government company which was in management for the relevant period on behalf of the owner was to pay anything to the owner or the Government company having spent for the owner was entitled to recover any sum from the owner. Therefore, we accept the submission of Mr. Shanti Bhushan that the Nationalisation Act contemplated at according to the commercial procedure to be drawn up which necessarily require d stock in trade to be
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Putti Kondala Rao & Ors Vs. Vellamanchili Sitarattamma & Anr | notification to that effect. Because the date of sale was a public holiday, the sale was held on the next day 7 June, 1960. The Munsif held that when the sale is held on a date different from that notified without an order of adjournment and a further proclamation of sale it would amount only to an irregularity and the remedy would be to apply to set aside the sale on proof of substantial injury. The Munsif held that there was no circumstance to make the sale illegal or invalid.6. The Munsif further held that the attachment was effective from 17 December, 1959. One of the judgment debtors who was the eldest brother was present at the time of attachment. The youngest brother alleged that he was not pulling on well with the family members because he married a girl of another caste. The Munsif held that to be an after-thought because there was no evidence of any discord between the brothers. The Munsif held that the judgment debtors were living together in the house attached and that they had knowledge of the attachment.7. With regard to the sale notice the Munsif held that the judgment debtors had knowledge of the attachment and sale and also held that no fraud was practised.8. With regard to the question of substantial injury the Munsif held that the allegation in the petition that the property was worth more than Rs. 25, 000 and that the decree holder got the same undervalued was to b e rejected. The Munsif came to the conclusion that the adjacent property and the evidence and material circumstances would show that the house could not be valued at more than Rs. 25, 000. The original sale deed Ex.B-11 of the adjoining house s howed that it was sold for Rs. 12, 000. That was a daba house with a tiled one at the back. The property which was sold was slightly larger in area than that one. But the Munsif held that the situation of the house of the neighbouhood proper ties all indicated that there was no under-valuation.The property was subject to four mortgages. The three mortgages were for the sums of Rs. 1000/- Rs. 3500/- and Rs. 1800/- and the fourth mortgage was for Rs. 400/- aggregating Rs. 6700/-. The sale was held subject to those four mortgages. Interest was at 12 per cent. Interest on the principal amount would be more than Rs. 1000/- on the date of the sale. The amount of Rs. 6125/- which was the auction price was subject to the mort gages. Further there was a maintenance charge in favour of one Kamakshamma for a sum of Rs. 60/- per year. In this background the Munsif held that the sale was valid.9. Before the Subordinate Judge two points for consideration in the appeal were whether there was material irregularity or fraud in the publication and conduct of the sale and whether they sustained substantial loss or injury.10. The Subordinate Judge held that the sale on 7 June, 1960 without an order of adjournment was an irregularity. The price shown in the sale proclamation was Rs. 6000/-. The decree holder valued the property at Rs. 16, 000/-. The Amin valued the property at Rs. 20, 000/- free from all encumbrances. The Subordinate Judge held that the property was subject to the charge and the sale was subject to mortgages. The Subordinate Judge came to the conclusion that the auction purchaser was the husband of the decree-holder and there was gross under-valuation of the property and set aside the sale.11. The decision of this Court in Laxmidevi v. Sethani Mukand Kanwar & Ors.(1) held that it depends upon several relevant facts whether the judgment debtor has suffered a substantial injury at a judicial sale.12. The features brought out on the materials in this case are that there was proper service and the sale was held on 7 June, 1960 because the previous day was a public holiday. The judgment debtors did not give their valuation. The property sold was subject to mortgages and charge. The decree holders have been kept out of the fruit of the decree for about 17 years. The attempt on the part of the judgment debtors to set aside the sale was an afterthought as was found by the Munsif. The Subordinate Judge was impressed with the suggestion that the property was under-valued. The Subordinate Judge was wrong there. The Munsif was correct in his conclusion and reasons that the property sold was subject to mortgages and charges and was sold at the correct price taking into consideration the price in the neighbourhood and other evidence on record.The High Court found that there was no allegation of substantial injury in the petition. It appears from the record that the Trial Court and the first Appellate Court addressed themselves at length on the question of substantial injury. Parties were heard. They made their submissions. The conclusions of the Trial Court and the Appellate Court are there.13. Counsel for the appellant submitted that if we set aside the judgment of the High Court, the matter would have to be remanded for hearing on other points. It will serve no useful purpose to send the matter to the High Court on other questions. There has been substantial justice done to the parties. The judgment of the Trial Court was wrongly reversed by the first Appellate Court.14. The High Court was not unjustified on the materials to hold that the application for setting aside the sale was bald and there was no proper allegation of substantial injury to the judgment debtors. Some times, however, there may not be express allegations of substantial in jury and the same may appear to be implicit from all facts an d circumstances alleged. In the present case, the Trial Court as well as the first Appellate Court heard the parties and decided the case on the footing that there were allegations of substantial injury to the judgment debtors. | 1[ds]12. The features brought out on the materials in this case are that there was proper service and the sale was held on 7 June, 1960 because the previous day was a public holiday. The judgment debtors did not give their valuation. The property sold was subject to mortgages and charge. The decree holders have been kept out of the fruit of the decree for about 17 years. The attempt on the part of the judgment debtors to set aside the sale was an afterthought as was found by the Munsif. The Subordinate Judge was impressed with the suggestion that the property wasThe Subordinate Judge was wrong there. The Munsif was correct in his conclusion and reasons that the property sold was subject to mortgages and charges and was sold at the correct price taking into consideration the price in the neighbourhood and other evidence on record.The High Court found that there was no allegation of substantial injury in the petition. It appears from the record that the Trial Court and the first Appellate Court addressed themselves at length on the question of substantial injury. Parties were heard. They made their submissions. The conclusions of the Trial Court and the Appellate Court are there.The High Court was not unjustified on the materials to hold that the application for setting aside the sale was bald and there was no proper allegation of substantial injury to the judgment debtors. Some times, however, there may not be express allegations of substantial in jury and the same may appear to be implicit from all facts an d circumstances alleged. In the present case, the Trial Court as well as the first Appellate Court heard the parties and decided the case on the footing that there were allegations of substantial injury to the judgment debtors. | 1 | 1,560 | 322 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
notification to that effect. Because the date of sale was a public holiday, the sale was held on the next day 7 June, 1960. The Munsif held that when the sale is held on a date different from that notified without an order of adjournment and a further proclamation of sale it would amount only to an irregularity and the remedy would be to apply to set aside the sale on proof of substantial injury. The Munsif held that there was no circumstance to make the sale illegal or invalid.6. The Munsif further held that the attachment was effective from 17 December, 1959. One of the judgment debtors who was the eldest brother was present at the time of attachment. The youngest brother alleged that he was not pulling on well with the family members because he married a girl of another caste. The Munsif held that to be an after-thought because there was no evidence of any discord between the brothers. The Munsif held that the judgment debtors were living together in the house attached and that they had knowledge of the attachment.7. With regard to the sale notice the Munsif held that the judgment debtors had knowledge of the attachment and sale and also held that no fraud was practised.8. With regard to the question of substantial injury the Munsif held that the allegation in the petition that the property was worth more than Rs. 25, 000 and that the decree holder got the same undervalued was to b e rejected. The Munsif came to the conclusion that the adjacent property and the evidence and material circumstances would show that the house could not be valued at more than Rs. 25, 000. The original sale deed Ex.B-11 of the adjoining house s howed that it was sold for Rs. 12, 000. That was a daba house with a tiled one at the back. The property which was sold was slightly larger in area than that one. But the Munsif held that the situation of the house of the neighbouhood proper ties all indicated that there was no under-valuation.The property was subject to four mortgages. The three mortgages were for the sums of Rs. 1000/- Rs. 3500/- and Rs. 1800/- and the fourth mortgage was for Rs. 400/- aggregating Rs. 6700/-. The sale was held subject to those four mortgages. Interest was at 12 per cent. Interest on the principal amount would be more than Rs. 1000/- on the date of the sale. The amount of Rs. 6125/- which was the auction price was subject to the mort gages. Further there was a maintenance charge in favour of one Kamakshamma for a sum of Rs. 60/- per year. In this background the Munsif held that the sale was valid.9. Before the Subordinate Judge two points for consideration in the appeal were whether there was material irregularity or fraud in the publication and conduct of the sale and whether they sustained substantial loss or injury.10. The Subordinate Judge held that the sale on 7 June, 1960 without an order of adjournment was an irregularity. The price shown in the sale proclamation was Rs. 6000/-. The decree holder valued the property at Rs. 16, 000/-. The Amin valued the property at Rs. 20, 000/- free from all encumbrances. The Subordinate Judge held that the property was subject to the charge and the sale was subject to mortgages. The Subordinate Judge came to the conclusion that the auction purchaser was the husband of the decree-holder and there was gross under-valuation of the property and set aside the sale.11. The decision of this Court in Laxmidevi v. Sethani Mukand Kanwar & Ors.(1) held that it depends upon several relevant facts whether the judgment debtor has suffered a substantial injury at a judicial sale.12. The features brought out on the materials in this case are that there was proper service and the sale was held on 7 June, 1960 because the previous day was a public holiday. The judgment debtors did not give their valuation. The property sold was subject to mortgages and charge. The decree holders have been kept out of the fruit of the decree for about 17 years. The attempt on the part of the judgment debtors to set aside the sale was an afterthought as was found by the Munsif. The Subordinate Judge was impressed with the suggestion that the property was under-valued. The Subordinate Judge was wrong there. The Munsif was correct in his conclusion and reasons that the property sold was subject to mortgages and charges and was sold at the correct price taking into consideration the price in the neighbourhood and other evidence on record.The High Court found that there was no allegation of substantial injury in the petition. It appears from the record that the Trial Court and the first Appellate Court addressed themselves at length on the question of substantial injury. Parties were heard. They made their submissions. The conclusions of the Trial Court and the Appellate Court are there.13. Counsel for the appellant submitted that if we set aside the judgment of the High Court, the matter would have to be remanded for hearing on other points. It will serve no useful purpose to send the matter to the High Court on other questions. There has been substantial justice done to the parties. The judgment of the Trial Court was wrongly reversed by the first Appellate Court.14. The High Court was not unjustified on the materials to hold that the application for setting aside the sale was bald and there was no proper allegation of substantial injury to the judgment debtors. Some times, however, there may not be express allegations of substantial in jury and the same may appear to be implicit from all facts an d circumstances alleged. In the present case, the Trial Court as well as the first Appellate Court heard the parties and decided the case on the footing that there were allegations of substantial injury to the judgment debtors.
### Response:
1
### Explanation:
12. The features brought out on the materials in this case are that there was proper service and the sale was held on 7 June, 1960 because the previous day was a public holiday. The judgment debtors did not give their valuation. The property sold was subject to mortgages and charge. The decree holders have been kept out of the fruit of the decree for about 17 years. The attempt on the part of the judgment debtors to set aside the sale was an afterthought as was found by the Munsif. The Subordinate Judge was impressed with the suggestion that the property wasThe Subordinate Judge was wrong there. The Munsif was correct in his conclusion and reasons that the property sold was subject to mortgages and charges and was sold at the correct price taking into consideration the price in the neighbourhood and other evidence on record.The High Court found that there was no allegation of substantial injury in the petition. It appears from the record that the Trial Court and the first Appellate Court addressed themselves at length on the question of substantial injury. Parties were heard. They made their submissions. The conclusions of the Trial Court and the Appellate Court are there.The High Court was not unjustified on the materials to hold that the application for setting aside the sale was bald and there was no proper allegation of substantial injury to the judgment debtors. Some times, however, there may not be express allegations of substantial in jury and the same may appear to be implicit from all facts an d circumstances alleged. In the present case, the Trial Court as well as the first Appellate Court heard the parties and decided the case on the footing that there were allegations of substantial injury to the judgment debtors.
|
Plastiblends India Limited Vs. Addl. Commissioner of Income Tax, Mumbai and Ors | in Williamson Financial Services and held that:"In this connection, it is also important to note that section 80A which falls in Chapter VI-A, deductions are allowed only from `gross total income". The object for making such provision is to limit the amount of section 80HHC deduction. It is true that section 80HHC provides for deduction of a percentage of the export profits. The percentage is calculated with reference to the export profits, but the deduction is only from "gross total income" as defined under section 80B(5) of the 1961 Act. Therefore, the very scheme of the 1961 Act is to treat the deductions under Chapter VI-A as deductions only from "gross total income" in order to arrive at the "total income". In other cases falling under section 28 where computation of income falls under the head "Business", allowances are deductible from the income but not from "gross total income". It is, therefore, not possible to accept the contention that section 80HHC is part of the provisions for computation of business income. Section 80 HHC does not have any direct impact on the computation of business income in the manner in which, for example, section 72 affects the computation of business income."16. The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapter VI-A refers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapter VI-A inasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapter VI-A are allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Section 80-IA is a code by itself and deduction allowable under Section 80-IA is a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of Income-Tax & Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the High Court:"44. To summarise, firstly, the Apex Court decision in the case of Mahendra Mills (supra) cannot be construed to mean that by disclaiming depreciation, the assessee can claim enhanced quantum of deduction under section 80IA. Secondly, the Apex Court in the case of Distributors (Baroda) P. Ltd. (supra) and in the case of Liberty India (supra) has clearly held that the special deduction under Chapter VIA has to be computed on the gross total income determined after deducting all deductions allowable under sections 30 to 43D of the Act and any device adopted to reduce or inflate the profits of eligible business has got to be rejected. Thirdly, this Court in the case of Albright Morarji and Pandit Ltd. (supra), Grasim Industries Ltd. (supra) and Asian Cable Corporation Ltd. (supra) has only followed the decisions of the Apex Court in the case of Distributors Baroda (supra). Thus, on analysis of all the decisions referred hereinabove, it is seen that the quantum of deduction allowable under section 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable under sections 30 to 43D of the Act. Therefore, whether the assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not, the quantum of deduction under section 80IA has to be determined on the total income computed after deducting all deductions allowable under sections 30 to 43D of the Act."18. As is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Section 80-IA of the Act. It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapter VI-A of the Act. Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Section 80-IA is a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Section 80-IA of the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Section 80-IA of the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Section 80-IA of the Act which cannot be permitted.19. Having interpreted the provisions of Section 80-IA in the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with. | 0[ds]6. It is not in dispute that all the assessees in these appeals are those industrial undertakings which fulfil the conditions mentioned in Sectionand, therefore, are entitled to deductions as stipulated in(5) of the said Section. It is also not in dispute that all the assessees fall in that category of industrial undertakings which are entitled to 100% deduction of the profits and gains derived from such industrial undertakings for the specified number of years. It is also an admitted fact that for the Assessment Years in question, they were entitled to the aforesaid deduction and their assessments were completed under Sectionof the Act.Submission of Mr. Pardiwala, the learned senior counsel for the assessees, was that deduction is to be allowed from `such profits and gains and, therefore, in the first instance, profits and gains which are earned by the assessees in the relevant Assessment Year are to be computed. For computation of such profits and gains, one has to go back and apply the provisions from Section 28 onwards contained in Part D of Chapter IV dealing with `profits and gains from business or profession. Section 29 of the Act, in this behalf, specifically stipulates that income referred to in Section 28 shall be computed in accordance with provisions contained in Sections 30 to 43D. In this hue, he argued, when it comes to claiming depreciation, Section 32 of the Act gets attracted and interpreting this Section, it has been held in Mahendra Mills case that whether to claim depreciation or not is the option of the assessees and it cannot be thrusted upon the assessees.The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapterrefers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapterinasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapterare allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Sectionis a code by itself and deduction allowable under Sectionis a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of& Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the HighAs is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Sectionof the Act.It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapterof the Act.Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Sectionis a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Sectionof the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Sectionof the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Sectionof the Act which cannot be permitted.19. Having interpreted the provisions of Sectionin the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with. | 0 | 6,269 | 870 | ### 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:
in Williamson Financial Services and held that:"In this connection, it is also important to note that section 80A which falls in Chapter VI-A, deductions are allowed only from `gross total income". The object for making such provision is to limit the amount of section 80HHC deduction. It is true that section 80HHC provides for deduction of a percentage of the export profits. The percentage is calculated with reference to the export profits, but the deduction is only from "gross total income" as defined under section 80B(5) of the 1961 Act. Therefore, the very scheme of the 1961 Act is to treat the deductions under Chapter VI-A as deductions only from "gross total income" in order to arrive at the "total income". In other cases falling under section 28 where computation of income falls under the head "Business", allowances are deductible from the income but not from "gross total income". It is, therefore, not possible to accept the contention that section 80HHC is part of the provisions for computation of business income. Section 80 HHC does not have any direct impact on the computation of business income in the manner in which, for example, section 72 affects the computation of business income."16. The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapter VI-A refers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapter VI-A inasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapter VI-A are allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Section 80-IA is a code by itself and deduction allowable under Section 80-IA is a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of Income-Tax & Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the High Court:"44. To summarise, firstly, the Apex Court decision in the case of Mahendra Mills (supra) cannot be construed to mean that by disclaiming depreciation, the assessee can claim enhanced quantum of deduction under section 80IA. Secondly, the Apex Court in the case of Distributors (Baroda) P. Ltd. (supra) and in the case of Liberty India (supra) has clearly held that the special deduction under Chapter VIA has to be computed on the gross total income determined after deducting all deductions allowable under sections 30 to 43D of the Act and any device adopted to reduce or inflate the profits of eligible business has got to be rejected. Thirdly, this Court in the case of Albright Morarji and Pandit Ltd. (supra), Grasim Industries Ltd. (supra) and Asian Cable Corporation Ltd. (supra) has only followed the decisions of the Apex Court in the case of Distributors Baroda (supra). Thus, on analysis of all the decisions referred hereinabove, it is seen that the quantum of deduction allowable under section 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable under sections 30 to 43D of the Act. Therefore, whether the assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not, the quantum of deduction under section 80IA has to be determined on the total income computed after deducting all deductions allowable under sections 30 to 43D of the Act."18. As is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Section 80-IA of the Act. It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapter VI-A of the Act. Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Section 80-IA is a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Section 80-IA of the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Section 80-IA of the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Section 80-IA of the Act which cannot be permitted.19. Having interpreted the provisions of Section 80-IA in the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with.
### Response:
0
### Explanation:
6. It is not in dispute that all the assessees in these appeals are those industrial undertakings which fulfil the conditions mentioned in Sectionand, therefore, are entitled to deductions as stipulated in(5) of the said Section. It is also not in dispute that all the assessees fall in that category of industrial undertakings which are entitled to 100% deduction of the profits and gains derived from such industrial undertakings for the specified number of years. It is also an admitted fact that for the Assessment Years in question, they were entitled to the aforesaid deduction and their assessments were completed under Sectionof the Act.Submission of Mr. Pardiwala, the learned senior counsel for the assessees, was that deduction is to be allowed from `such profits and gains and, therefore, in the first instance, profits and gains which are earned by the assessees in the relevant Assessment Year are to be computed. For computation of such profits and gains, one has to go back and apply the provisions from Section 28 onwards contained in Part D of Chapter IV dealing with `profits and gains from business or profession. Section 29 of the Act, in this behalf, specifically stipulates that income referred to in Section 28 shall be computed in accordance with provisions contained in Sections 30 to 43D. In this hue, he argued, when it comes to claiming depreciation, Section 32 of the Act gets attracted and interpreting this Section, it has been held in Mahendra Mills case that whether to claim depreciation or not is the option of the assessees and it cannot be thrusted upon the assessees.The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapterrefers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapterinasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapterare allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Sectionis a code by itself and deduction allowable under Sectionis a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of& Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the HighAs is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Sectionof the Act.It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapterof the Act.Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Sectionis a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Sectionof the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Sectionof the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Sectionof the Act which cannot be permitted.19. Having interpreted the provisions of Sectionin the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with.
|
Sitaram Vs. Radhey Shyam Vishnav & Others | issue arose with regard to the interpretation of the provisions contained in the Rajasthan Panchayati Raj Election Rules, 1994 (for short, "the 1994 Rules"). Rule 81(2) of the 1994 Rules provides that no petition shall be deemed to have been presented under the election rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security deposit for the costs of the opposite party. In the said case, the election petition was filed on 28.02.2015 but costs were not deposited along with the petition and the same were deposited on 12.03.2015. It was contended before the learned single Judge that the election petitioner had submitted the challan/tender for the deposit on 28.02.2015 itself but the Election Tribunal had not passed any order for depositing the costs with the treasury and, therefore, the same could not have been deposited on that day and the deposit was made after the order was passed. The learned single Judge took note of Rule 85 of the Election Rules which provides that the procedure provided in the CPC with regard to suits is made applicable in so far as can be made applicable and came to hold that if the deposit exceeds Rs. 25/-, the same can only be deposited in the treasury if an order is passed by the Court or by the Munsarim or the Reader of the Court concerned, as the case may be. 35. In this regard, Mr. Singh has placed reliance on an earlier decision of the Rajasthan High Court in Gulab Singh v. The Munsif and Judicial Magistrate 1st Class and others, In the said case, the learned single Judge was dealing with the security deposit as provided under Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. In the said case, the deposit was made subsequently. It was contended that the same was fatal to the case as the provision is mandatory. Rule 79(2) of the said Rules read as follows:- "79(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party." 36. The learned single Judge placed reliance on Charan Lal Sahu (II) (supra) and came to hold that Rule 79(2) in relation to the deposit of the security along with the petition is mandatory and since on facts it is not in dispute that on 21st February, 1978 when the election petition was filed, it was not presented along with a deposit of L50/- as required for the costs of the opposite party, the legal and logical consequences would be that the election petition could not be deemed to have been presented under the Rules as per the mandate of Rule 79(2) of the Rajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Being of this view, the learned single Judge opined that there was no valid election petition before the Election Tribunal. 37. The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means to co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and others, where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 under Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005 allowing the advocate to deposit the security amount under Section 53 of the Act of 1959 for election petition. The election petition was submitted on 31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision. 38. Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition. | 1[ds]Mr. Jain, learned senior counsel appearing for the 1st respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has been drawn from aBench decision in Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria and others,. On a perusal of the aforesaid dictum, we are inclined to state that the aforesaid decision has to be distinguished on the principle laid down by this Court in Charan Lal Sahu (I) (supra).The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, thewill entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means toor go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining towill have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier.Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition. | 1 | 9,507 | 540 | ### 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:
issue arose with regard to the interpretation of the provisions contained in the Rajasthan Panchayati Raj Election Rules, 1994 (for short, "the 1994 Rules"). Rule 81(2) of the 1994 Rules provides that no petition shall be deemed to have been presented under the election rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security deposit for the costs of the opposite party. In the said case, the election petition was filed on 28.02.2015 but costs were not deposited along with the petition and the same were deposited on 12.03.2015. It was contended before the learned single Judge that the election petitioner had submitted the challan/tender for the deposit on 28.02.2015 itself but the Election Tribunal had not passed any order for depositing the costs with the treasury and, therefore, the same could not have been deposited on that day and the deposit was made after the order was passed. The learned single Judge took note of Rule 85 of the Election Rules which provides that the procedure provided in the CPC with regard to suits is made applicable in so far as can be made applicable and came to hold that if the deposit exceeds Rs. 25/-, the same can only be deposited in the treasury if an order is passed by the Court or by the Munsarim or the Reader of the Court concerned, as the case may be. 35. In this regard, Mr. Singh has placed reliance on an earlier decision of the Rajasthan High Court in Gulab Singh v. The Munsif and Judicial Magistrate 1st Class and others, In the said case, the learned single Judge was dealing with the security deposit as provided under Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. In the said case, the deposit was made subsequently. It was contended that the same was fatal to the case as the provision is mandatory. Rule 79(2) of the said Rules read as follows:- "79(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party." 36. The learned single Judge placed reliance on Charan Lal Sahu (II) (supra) and came to hold that Rule 79(2) in relation to the deposit of the security along with the petition is mandatory and since on facts it is not in dispute that on 21st February, 1978 when the election petition was filed, it was not presented along with a deposit of L50/- as required for the costs of the opposite party, the legal and logical consequences would be that the election petition could not be deemed to have been presented under the Rules as per the mandate of Rule 79(2) of the Rajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Being of this view, the learned single Judge opined that there was no valid election petition before the Election Tribunal. 37. The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means to co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and others, where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 under Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005 allowing the advocate to deposit the security amount under Section 53 of the Act of 1959 for election petition. The election petition was submitted on 31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision. 38. Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.
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Mr. Jain, learned senior counsel appearing for the 1st respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has been drawn from aBench decision in Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria and others,. On a perusal of the aforesaid dictum, we are inclined to state that the aforesaid decision has to be distinguished on the principle laid down by this Court in Charan Lal Sahu (I) (supra).The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, thewill entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means toor go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining towill have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier.Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.
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Commissioner Of Wealth Tax, Madras Vs. Ramaraju Surgical Cotton Mills, Ltd | had already come into force. Consequently the condition laid down in the principal clause of S. 5 (1) (xxi) was satisfied and the company became entitled to exemption in respect of the value of the assets used up in setting up this unit. 5. Learned counsel for the Commissioner, however, challenged the right of the respondent to claim this exemption on another ground, viz., that the exemption was claimed in respect of money laid out in a period which was not covered by the period envisaged in the second proviso. It was urged that if it be held that the unit was set up after the Act had come into force on the 1st April, 1957, it must also be held that the operations for the establishment of the unit had been commenced by the company almost simultaneously with the unit having been set up, and that date would, there fore, be a date subsequent to the assessment year 1957-58 in which year the exemption was claimed. This is a question which we do not think can be legitimately raised on behalf of the Commissioner at this stage. The only contention before the Tribunal on behalf of the Commissioner was that the operations for the establishment of the unit had been commenced by the respondent before the Act came into force, and that it should be held that the unit was also set up at the same time when those operations were commenced. There was no contention at any stage that the operations for the establishment of the unit were commenced at a subsequent stage. In fact, it was only for the purpose of urging that the principal clause was not applicable to the case of the respondent that the position was taken up on behalf of the Commissioner that the operations for estblishment of the unit had been commenced before 1st April, 1957, and the unit must be held to have been setup at the same time when those operations were commenced. That submission, as we have indicated above, has no force. 6. In any case, the judgments passed by all the Wealth-tax Authorities Show that it was at no stage in dispute that the operations for establishment of the unit had been commenced by the respondent prior to 1st April. 1957. Para 5 of the statement of the case mentions that the Wealth-tax Officer disallowed the claim on the ground that the unit was set up prior to 1st April, 1957. The Appellate Assistant Commissioner also in his judgment said :"In this view of the matter, the appellant set up the undertaking even prior to 1st April, 1957 as operations were carried on prior to that date for the establishment of the undertaking. The operations consisted of the seeking of permission from the Government to install the unit, and placing of orders with manufacturers of machinery and advancing of moneys toward the purchase of machinery. 7. The Tribunal also disallowed the claim on the basis that the respondent commenced operations for setting up the unit earlier than 1st April, 1955, lt does not appear to be necessary for us to express any opinion as to the particular stage at which it can be said that company commences operations for the establishment of a unit. In the present case, the Tribunal proceeded on the basis that, whatever be the exact date of commencement of the operations for establishment of this unit by the respondent, it was certainly begore1st April, 1957; and we consider that that fact, by itself, is sufficient to entitle the respondent to claim the exemption. The Commissioner cannot. at this stage, be allowed to raise a new question and ask this Court to decide that the date of commencement of the operations for establishment of the unit by the respondent was different from that accepted by the Tribunal. That question was not raised and dealt with by the Tribunal. It is not even a question that might have been raised before the Tribunal and the Tribunal might have failed to deal with, nor is it a question which may not have been raised before the Tribunal and yet was dealt with by it on the principle laid down by this Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co., Ltd., 1961.42 ITR 589 : (AIR l96l SC 1633) such a question could not be canvassed before the High Court and cannot be allowed to be raised in this Court. The question referred to the High Court had to be answered on the basis that the respondent did commence operations for establishing this unit before 1st April. 1957: and the further finding of fact recorded by the Tribunal is that a sum of Rs. 1.43.727 had been invested in setting up the unit by 30th September, 1956, which was the valuation date for the assessment year 1957-58. The very first assessment year after the commencement of the operations for establishment of the unit was this assessment year 1957-58. In the Wealth-Tax Act assessment year has been defined to mean the year for which tax is chargeable under S. 3 of that Act. Since the Act came into force on the 1st April, 1957, the financial year 1957-58 was the first assessment year for which tax became chargeable, and consequently, for purposes of the second proviso to Section 5 (1) (xxi), the assessment year following the commencement of operations for establishment of the unit in the case of any company which commenced the operations any time before the 1st April. 1957, will be the assessment year 1957-58. Prior to the year 1957-58 there was no assessment year as defined under the Act, and consequently, the first assessment year for which exemption could be claimed was this assessment year I957-58. The respondent which had commenced operations for establishment of its new unit prior to 1st April, 1957, was rightly allowed exemption in respect of the amount that had been invested by it upto the relevant valuation date. | 1[ds]3. The High Court held that unless a factory is erected and the plants and machinery installed therein, it cannot be said to have been set up. The resolution of the Board of Directors, the orders placed for purchasing machinery, licence obtained from the Government for constructing the machinery, are merely initial stages towards setting up, however necessary and essential they may be to further the achievement of the end. It is not, however, the actual functioning of the factory or its going into production that can alone be called setting up of the factory. The setting up is perhaps a stage interior to the commencement of the factory. Thereafter, the High Court referred to a decision of the Bombay High Court in Western India Vegetable Products, Ltd. v. Commr. of Income-tax, Bombay City, 1954-26 ITR 151 : (AIR 1955 Bom 13 ) and on its basis, concluded that the proper meaning to be assigned to the expression "set up" in Section 5 (l) (xxi) would be "ready to commence business". We are unable to agree with the learned counsel for the Commissioner that in arriving at this view, the High Court committed any error. A unit cannot be said to have been set up unless it is ready to discharge the function for which it is being set up. It is only when the unit has been put into such a shape that it can start functioning as a business or a manufacturing organization that it can be said that the unit has been set up. The expression used in the proviso, under which the period for which the exemption is available is to be determined, is not the same as used in the principal clause. In the proviso, the period of five successive years of exemption has to commence with the assessment year next following the date on which the company commences operations for the establishment of the unit. Operations for the establishment of a unit, from the very nature of that expression, can only signify steps that have to be taken to establish the unit. The word "set up" in the principal clause, in our opinion, is equivalent to the word "established", but operations for establishment cannot be equated with the establishment of the unit itself or its setting up. The applicability of the proviso has, therefore, to be decided by finding out when the company commenced operations for establishment of the unit, which operations must be antecedent to the actual date on which the company is held to have been set up for purposes of the principal clauseIn the case before us, the proviso does not even refer to commencement of the unit. The criterion for determining the period of exemption is based on the commencement of the operations for the establishment of the unit. These operations for establishment of the unit cannot be simultaneous with the setting up of the unit, as urged on behalf of the Commissioner, but must precede the actual setting up of the unit. In fact, it is the operations for establishment of a unit which ultimately culminate in the setting up of the unit4. On this interpretation, it is clear that in this case, the claim put forward by the respondent for exemption has been rightly held to be allowable by the High Court. In the statement, of the case and in its appellate judgment, the Tribunal did not specifically record any finding as to the date when the unit was ready to go into business and to start production. In the appellate order, it was mentioned that according to the respondent, the unit was set up only when the Inspector of Factories issued a licence to the respondent for working the factory, which was in June, 1958. In the statement of the case, the facts recited show that the construction of the factory buildings was completed by December, 1957 and the erection of the spinning machinery and plant was completed in several stages commencing from June, 1957.On these facts, the High Court, and we consider rightly, proceeded on the basis that the unit was completed and became ready to go into business only after 1st April, 1957, when the Act had already come into force. Consequently the condition laid down in the principal clause of S. 5 (1) (xxi) was satisfied and the company became entitled to exemption in respect of the value of the assets used up in setting up this unitThis is a question which we do not think can be legitimately raised on behalf of the Commissioner at this stage. The only contention before the Tribunal on behalf of the Commissioner was that the operations for the establishment of the unit had been commenced by the respondent before the Act came into force, and that it should be held that the unit was also set up at the same time when those operations were commenced. There was no contention at any stage that the operations for the establishment of the unit were commenced at a subsequent stage. In fact, it was only for the purpose of urging that the principal clause was not applicable to the case of the respondent that the position was taken up on behalf of the Commissioner that the operations for estblishment of the unit had been commenced before 1st April, 1957, and the unit must be held to have been setup at the same time when those operations were commenced. That submission, as we have indicated above, has no forceThe Tribunal also disallowed the claim on the basis that the respondent commenced operations for setting up the unit earlier than 1st April, 1955, lt does not appear to be necessary for us to express any opinion as to the particular stage at which it can be said that company commences operations for the establishment of a unit. In the present case, the Tribunal proceeded on the basis that, whatever be the exact date of commencement of the operations for establishment of this unit by the respondent, it was certainly begore1st April, 1957; and we consider that that fact, by itself, is sufficient to entitle the respondent to claim the exemption. The Commissioner cannot. at this stage, be allowed to raise a new question and ask this Court to decide that the date of commencement of the operations for establishment of the unit by the respondent was different from that accepted by the Tribunal. That question was not raised and dealt with by the Tribunal. It is not even a question that might have been raised before the Tribunal and the Tribunal might have failed to deal with, nor is it a question which may not have been raised before the Tribunal and yet was dealt with by it on the principle laid down by this Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co., Ltd., 1961.42 ITR 589 : (AIR l96l SC 1633) such a question could not be canvassed before the High Court and cannot be allowed to be raised in this Court. The question referred to the High Court had to be answered on the basis that the respondent did commence operations for establishing this unit before 1st April. 1957: and the further finding of fact recorded by the Tribunal is that a sum of Rs. 1.43.727 had been invested in setting up the unit by 30th September, 1956, which was the valuation date for the assessment year 1957-58. The very first assessment year after the commencement of the operations for establishment of the unit was this assessment year 1957-58. In the Wealth-Tax Act assessment year has been defined to mean the year for which tax is chargeable under S. 3 of that Act. Since the Act came into force on the 1st April, 1957, the financial year 1957-58 was the first assessment year for which tax became chargeable, and consequently, for purposes of the second proviso to Section 5 (1) (xxi), the assessment year following the commencement of operations for establishment of the unit in the case of any company which commenced the operations any time before the 1st April. 1957, will be the assessment year 1957-58. Prior to the year 1957-58 there was no assessment year as defined under the Act, and consequently, the first assessment year for which exemption could be claimed was this assessment year I957-58. The respondent which had commenced operations for establishment of its new unit prior to 1st April, 1957, was rightly allowed exemption in respect of the amount that had been invested by it upto the relevant valuation date. | 1 | 2,887 | 1,581 | ### Instruction:
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had already come into force. Consequently the condition laid down in the principal clause of S. 5 (1) (xxi) was satisfied and the company became entitled to exemption in respect of the value of the assets used up in setting up this unit. 5. Learned counsel for the Commissioner, however, challenged the right of the respondent to claim this exemption on another ground, viz., that the exemption was claimed in respect of money laid out in a period which was not covered by the period envisaged in the second proviso. It was urged that if it be held that the unit was set up after the Act had come into force on the 1st April, 1957, it must also be held that the operations for the establishment of the unit had been commenced by the company almost simultaneously with the unit having been set up, and that date would, there fore, be a date subsequent to the assessment year 1957-58 in which year the exemption was claimed. This is a question which we do not think can be legitimately raised on behalf of the Commissioner at this stage. The only contention before the Tribunal on behalf of the Commissioner was that the operations for the establishment of the unit had been commenced by the respondent before the Act came into force, and that it should be held that the unit was also set up at the same time when those operations were commenced. There was no contention at any stage that the operations for the establishment of the unit were commenced at a subsequent stage. In fact, it was only for the purpose of urging that the principal clause was not applicable to the case of the respondent that the position was taken up on behalf of the Commissioner that the operations for estblishment of the unit had been commenced before 1st April, 1957, and the unit must be held to have been setup at the same time when those operations were commenced. That submission, as we have indicated above, has no force. 6. In any case, the judgments passed by all the Wealth-tax Authorities Show that it was at no stage in dispute that the operations for establishment of the unit had been commenced by the respondent prior to 1st April. 1957. Para 5 of the statement of the case mentions that the Wealth-tax Officer disallowed the claim on the ground that the unit was set up prior to 1st April, 1957. The Appellate Assistant Commissioner also in his judgment said :"In this view of the matter, the appellant set up the undertaking even prior to 1st April, 1957 as operations were carried on prior to that date for the establishment of the undertaking. The operations consisted of the seeking of permission from the Government to install the unit, and placing of orders with manufacturers of machinery and advancing of moneys toward the purchase of machinery. 7. The Tribunal also disallowed the claim on the basis that the respondent commenced operations for setting up the unit earlier than 1st April, 1955, lt does not appear to be necessary for us to express any opinion as to the particular stage at which it can be said that company commences operations for the establishment of a unit. In the present case, the Tribunal proceeded on the basis that, whatever be the exact date of commencement of the operations for establishment of this unit by the respondent, it was certainly begore1st April, 1957; and we consider that that fact, by itself, is sufficient to entitle the respondent to claim the exemption. The Commissioner cannot. at this stage, be allowed to raise a new question and ask this Court to decide that the date of commencement of the operations for establishment of the unit by the respondent was different from that accepted by the Tribunal. That question was not raised and dealt with by the Tribunal. It is not even a question that might have been raised before the Tribunal and the Tribunal might have failed to deal with, nor is it a question which may not have been raised before the Tribunal and yet was dealt with by it on the principle laid down by this Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co., Ltd., 1961.42 ITR 589 : (AIR l96l SC 1633) such a question could not be canvassed before the High Court and cannot be allowed to be raised in this Court. The question referred to the High Court had to be answered on the basis that the respondent did commence operations for establishing this unit before 1st April. 1957: and the further finding of fact recorded by the Tribunal is that a sum of Rs. 1.43.727 had been invested in setting up the unit by 30th September, 1956, which was the valuation date for the assessment year 1957-58. The very first assessment year after the commencement of the operations for establishment of the unit was this assessment year 1957-58. In the Wealth-Tax Act assessment year has been defined to mean the year for which tax is chargeable under S. 3 of that Act. Since the Act came into force on the 1st April, 1957, the financial year 1957-58 was the first assessment year for which tax became chargeable, and consequently, for purposes of the second proviso to Section 5 (1) (xxi), the assessment year following the commencement of operations for establishment of the unit in the case of any company which commenced the operations any time before the 1st April. 1957, will be the assessment year 1957-58. Prior to the year 1957-58 there was no assessment year as defined under the Act, and consequently, the first assessment year for which exemption could be claimed was this assessment year I957-58. The respondent which had commenced operations for establishment of its new unit prior to 1st April, 1957, was rightly allowed exemption in respect of the amount that had been invested by it upto the relevant valuation date.
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principal clauseIn the case before us, the proviso does not even refer to commencement of the unit. The criterion for determining the period of exemption is based on the commencement of the operations for the establishment of the unit. These operations for establishment of the unit cannot be simultaneous with the setting up of the unit, as urged on behalf of the Commissioner, but must precede the actual setting up of the unit. In fact, it is the operations for establishment of a unit which ultimately culminate in the setting up of the unit4. On this interpretation, it is clear that in this case, the claim put forward by the respondent for exemption has been rightly held to be allowable by the High Court. In the statement, of the case and in its appellate judgment, the Tribunal did not specifically record any finding as to the date when the unit was ready to go into business and to start production. In the appellate order, it was mentioned that according to the respondent, the unit was set up only when the Inspector of Factories issued a licence to the respondent for working the factory, which was in June, 1958. In the statement of the case, the facts recited show that the construction of the factory buildings was completed by December, 1957 and the erection of the spinning machinery and plant was completed in several stages commencing from June, 1957.On these facts, the High Court, and we consider rightly, proceeded on the basis that the unit was completed and became ready to go into business only after 1st April, 1957, when the Act had already come into force. Consequently the condition laid down in the principal clause of S. 5 (1) (xxi) was satisfied and the company became entitled to exemption in respect of the value of the assets used up in setting up this unitThis is a question which we do not think can be legitimately raised on behalf of the Commissioner at this stage. The only contention before the Tribunal on behalf of the Commissioner was that the operations for the establishment of the unit had been commenced by the respondent before the Act came into force, and that it should be held that the unit was also set up at the same time when those operations were commenced. There was no contention at any stage that the operations for the establishment of the unit were commenced at a subsequent stage. In fact, it was only for the purpose of urging that the principal clause was not applicable to the case of the respondent that the position was taken up on behalf of the Commissioner that the operations for estblishment of the unit had been commenced before 1st April, 1957, and the unit must be held to have been setup at the same time when those operations were commenced. That submission, as we have indicated above, has no forceThe Tribunal also disallowed the claim on the basis that the respondent commenced operations for setting up the unit earlier than 1st April, 1955, lt does not appear to be necessary for us to express any opinion as to the particular stage at which it can be said that company commences operations for the establishment of a unit. In the present case, the Tribunal proceeded on the basis that, whatever be the exact date of commencement of the operations for establishment of this unit by the respondent, it was certainly begore1st April, 1957; and we consider that that fact, by itself, is sufficient to entitle the respondent to claim the exemption. The Commissioner cannot. at this stage, be allowed to raise a new question and ask this Court to decide that the date of commencement of the operations for establishment of the unit by the respondent was different from that accepted by the Tribunal. That question was not raised and dealt with by the Tribunal. It is not even a question that might have been raised before the Tribunal and the Tribunal might have failed to deal with, nor is it a question which may not have been raised before the Tribunal and yet was dealt with by it on the principle laid down by this Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co., Ltd., 1961.42 ITR 589 : (AIR l96l SC 1633) such a question could not be canvassed before the High Court and cannot be allowed to be raised in this Court. The question referred to the High Court had to be answered on the basis that the respondent did commence operations for establishing this unit before 1st April. 1957: and the further finding of fact recorded by the Tribunal is that a sum of Rs. 1.43.727 had been invested in setting up the unit by 30th September, 1956, which was the valuation date for the assessment year 1957-58. The very first assessment year after the commencement of the operations for establishment of the unit was this assessment year 1957-58. In the Wealth-Tax Act assessment year has been defined to mean the year for which tax is chargeable under S. 3 of that Act. Since the Act came into force on the 1st April, 1957, the financial year 1957-58 was the first assessment year for which tax became chargeable, and consequently, for purposes of the second proviso to Section 5 (1) (xxi), the assessment year following the commencement of operations for establishment of the unit in the case of any company which commenced the operations any time before the 1st April. 1957, will be the assessment year 1957-58. Prior to the year 1957-58 there was no assessment year as defined under the Act, and consequently, the first assessment year for which exemption could be claimed was this assessment year I957-58. The respondent which had commenced operations for establishment of its new unit prior to 1st April, 1957, was rightly allowed exemption in respect of the amount that had been invested by it upto the relevant valuation date.
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Lakhanpal National Ltd Vs. M.R.T.P. Commission And Another | and unfair trade practices. By providing for measures against restrictive and monopolistic trade practices, it was perhaps assumed that the consumers also, as a result, will get a fair deal. However, experience indicated otherwise, and following the recommendations of a Committee, it was considered necessary to amend the Act. In the fast changing modern world of today advertising goods is a well-recognised marketing strategy, The consumers also need it, as the articles which they require for their daily life are of a great variety and the knowledge of an ordinary man is imperfect. If the manufactures make available, by proper publicity, necessary details about their products, they come as great help to the man in the street. Unfortunately, some of the advertisements issued for this purpose make exaggerated and sometime baseless representations about the quality, standard and performance, with an object of attracting purchasers, It was therefore considered necessary to have statutory regulations insisting that, while advertising the seller must speak the truth. Accordingly sections 36-A to 36-B in part B were inserted in Chapter V of the Act by an amendment in 1984. 7. However, the question in controversy has to be answered by construing the relevant provisions of the Act. The definition of “unfair trade Practice” in Section 36-A mentioned above is not inclusive or flexible, but specific and limited in its contents. The object is to bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language Similarly a statement, which be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated in Halsbury’st Laws of England (Fourth Edition, paragraphs 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable represented. “Another way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish a misrepresentation” and “that where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, even though there may have been any number of inaccuracies in unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy in immaterial minutiae will not render the representation true.” Let us examine the relevant facts of this case in this background.8. The Mitsushita Ltd. is not a popular name in this country while its products “National” and “Panasonic” are. An advertisement mentioning merely Mitsushsita Ltd. may, therefore, fail to convey anything to an ordinary buyer unless he is also told that it is the same Company which manufactures products known to him by the names “National” and “Panasonic”. If such were the position, there would not have been any scope for objection. However, in our view the same effect is produced by the impugned advertisements, it has to be remembered that there is no other company with the name of “National” and “Panasonic” and there is no scope for any confusion on that scope. Where the reference is being made to the standard, of the quality, It is not material whether the manufacturing Company is indicated by its accurately correct name or by its description with reference to its products. We, therefore, hold that the erroneous description of the manufacturing Company in the advertisements in question does not attract Section 36-A of the Act, although we would hasten to add that it would be more proper for the appellant Company to give the full facts by referring to Mitsushita Ltd. by its correct name and further stating that its products are known by the names “National” and “Panasonic.” 9. The learned counsel for the respondent Commission suggested that the appellant was not entitled to claim “collaboration” with the Japanese Company on the basis of the agreement mentioned earlier. As the appellant Company is only getting technical knowledge and assistance under the agreement it is not permissible to claim Novino batteries as the product of joint venture. The argument was rightly repelled on behalf of the appellant on the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the show cause notice quoted above. If so advised, the Commission will have to hold a fresh inquiry after issuing another show cause notice if it desires to pursue this aspect. 10. The learned counsel for the appellant also raised several other points in support of the appeal, one of them being that from the facts and circumstances of the case it cannot be held that the impugned advertisements are capable of causing any loss or injury to the consumers. In view of our decision, as mentioned earlier, it is not necessary to deal with the other arguments. | 1[ds]7. However, the question in controversy has to be answered by construing the relevant provisions of the Act. The definition ofin Section 36-A mentioned above is not inclusive or flexible, but specific and limited in its contents. The object is to bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language Similarly a statement, which be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated inLaws of England (Fourth Edition, paragraphs 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable represented.way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish aat where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, even though there may have been any number ofin unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy inminutiae will not render the representationLet us examine the relevant facts of this case in this background.8. The Mitsushita Ltd. is not a popular name in this country while its productsare. An advertisement mentioning merely Mitsushsita Ltd. may, therefore, fail to convey anything to an ordinary buyer unless he is also told that it is the same Company which manufactures products known to himby the namesIf such were the position, there would not have been any scope for objection. However, in our view the same effect is produced by the impugned advertisements, it has to be remembered that there is no other company with the name ofand there is no scope for any confusion on that scope. Where the reference is being made to the standard, of the quality, It is not material whether the manufacturing Company is indicated by its accurately correct name or by its description with reference to its products. We, therefore, hold that the erroneousof the manufacturing Company in the advertisements in question does not attract Section 36-A of the Act, although we would hasten to add that it would be more proper for the appellant Company to give the full facts by referring to Mitsushita Ltd. by its correct name and further stating that its products are knownby the names9. The learned counsel for the respondent Commission suggested that the appellant was not entitled to claimwith the Japanese Company on the basis of the agreement mentioned earlier. As the appellant Company is only getting technical knowledge and assistance under the agreement it is not permissible to claim Novino batteries as the product of joint venture. The argument was rightly repelled on behalf of theon the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the show cause notice quoted above. If so advised, the Commission will have to hold a fresh inquiry after issuing another show cause notice if it desires to pursue this aspect.The learned counsel for the appellant also raised several other points in support of the appeal, one of them being that from the facts and circumstances of the case it cannot be held that the impugned advertisements are capable of causing any loss or injury to the consumers. In view of our decision, as mentioned earlier, it is not necessary to deal with the other arguments. | 1 | 2,270 | 840 | ### Instruction:
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and unfair trade practices. By providing for measures against restrictive and monopolistic trade practices, it was perhaps assumed that the consumers also, as a result, will get a fair deal. However, experience indicated otherwise, and following the recommendations of a Committee, it was considered necessary to amend the Act. In the fast changing modern world of today advertising goods is a well-recognised marketing strategy, The consumers also need it, as the articles which they require for their daily life are of a great variety and the knowledge of an ordinary man is imperfect. If the manufactures make available, by proper publicity, necessary details about their products, they come as great help to the man in the street. Unfortunately, some of the advertisements issued for this purpose make exaggerated and sometime baseless representations about the quality, standard and performance, with an object of attracting purchasers, It was therefore considered necessary to have statutory regulations insisting that, while advertising the seller must speak the truth. Accordingly sections 36-A to 36-B in part B were inserted in Chapter V of the Act by an amendment in 1984. 7. However, the question in controversy has to be answered by construing the relevant provisions of the Act. The definition of “unfair trade Practice” in Section 36-A mentioned above is not inclusive or flexible, but specific and limited in its contents. The object is to bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language Similarly a statement, which be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated in Halsbury’st Laws of England (Fourth Edition, paragraphs 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable represented. “Another way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish a misrepresentation” and “that where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, even though there may have been any number of inaccuracies in unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy in immaterial minutiae will not render the representation true.” Let us examine the relevant facts of this case in this background.8. The Mitsushita Ltd. is not a popular name in this country while its products “National” and “Panasonic” are. An advertisement mentioning merely Mitsushsita Ltd. may, therefore, fail to convey anything to an ordinary buyer unless he is also told that it is the same Company which manufactures products known to him by the names “National” and “Panasonic”. If such were the position, there would not have been any scope for objection. However, in our view the same effect is produced by the impugned advertisements, it has to be remembered that there is no other company with the name of “National” and “Panasonic” and there is no scope for any confusion on that scope. Where the reference is being made to the standard, of the quality, It is not material whether the manufacturing Company is indicated by its accurately correct name or by its description with reference to its products. We, therefore, hold that the erroneous description of the manufacturing Company in the advertisements in question does not attract Section 36-A of the Act, although we would hasten to add that it would be more proper for the appellant Company to give the full facts by referring to Mitsushita Ltd. by its correct name and further stating that its products are known by the names “National” and “Panasonic.” 9. The learned counsel for the respondent Commission suggested that the appellant was not entitled to claim “collaboration” with the Japanese Company on the basis of the agreement mentioned earlier. As the appellant Company is only getting technical knowledge and assistance under the agreement it is not permissible to claim Novino batteries as the product of joint venture. The argument was rightly repelled on behalf of the appellant on the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the show cause notice quoted above. If so advised, the Commission will have to hold a fresh inquiry after issuing another show cause notice if it desires to pursue this aspect. 10. The learned counsel for the appellant also raised several other points in support of the appeal, one of them being that from the facts and circumstances of the case it cannot be held that the impugned advertisements are capable of causing any loss or injury to the consumers. In view of our decision, as mentioned earlier, it is not necessary to deal with the other arguments.
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7. However, the question in controversy has to be answered by construing the relevant provisions of the Act. The definition ofin Section 36-A mentioned above is not inclusive or flexible, but specific and limited in its contents. The object is to bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language Similarly a statement, which be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated inLaws of England (Fourth Edition, paragraphs 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable represented.way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish aat where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, even though there may have been any number ofin unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy inminutiae will not render the representationLet us examine the relevant facts of this case in this background.8. The Mitsushita Ltd. is not a popular name in this country while its productsare. An advertisement mentioning merely Mitsushsita Ltd. may, therefore, fail to convey anything to an ordinary buyer unless he is also told that it is the same Company which manufactures products known to himby the namesIf such were the position, there would not have been any scope for objection. However, in our view the same effect is produced by the impugned advertisements, it has to be remembered that there is no other company with the name ofand there is no scope for any confusion on that scope. Where the reference is being made to the standard, of the quality, It is not material whether the manufacturing Company is indicated by its accurately correct name or by its description with reference to its products. We, therefore, hold that the erroneousof the manufacturing Company in the advertisements in question does not attract Section 36-A of the Act, although we would hasten to add that it would be more proper for the appellant Company to give the full facts by referring to Mitsushita Ltd. by its correct name and further stating that its products are knownby the names9. The learned counsel for the respondent Commission suggested that the appellant was not entitled to claimwith the Japanese Company on the basis of the agreement mentioned earlier. As the appellant Company is only getting technical knowledge and assistance under the agreement it is not permissible to claim Novino batteries as the product of joint venture. The argument was rightly repelled on behalf of theon the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the show cause notice quoted above. If so advised, the Commission will have to hold a fresh inquiry after issuing another show cause notice if it desires to pursue this aspect.The learned counsel for the appellant also raised several other points in support of the appeal, one of them being that from the facts and circumstances of the case it cannot be held that the impugned advertisements are capable of causing any loss or injury to the consumers. In view of our decision, as mentioned earlier, it is not necessary to deal with the other arguments.
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Ganpat Ladha Vs. Sashikant Vishnu Shinde | Maharashtra, but it is not wholly irrelevant, since the judgment of the Bombay High Court in appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabal Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5 (11) (c) applies only in respect of residential premises and since the premise%, in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section 5 (11) (c).Coming now to t he first question to which we referred earlier, we think that the problem of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlals case (supra) followed by t he more recent decision in Harbanslal Jagmohandas &Anr. v. Prabhudas Shivlal([1976] 3 S.C.R. 629.) which completely covers the case before us.7. It is clear to us that the, Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai Patel &Ors.(A.I.R. 1968 Gujarat p. 172.). If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under section 12 (3) (a) to get a decree. for eviction. But where the conditions of Section 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12 (3) (b) and defeat the landlords claim for eviction. If, however, he does not fulfill those conditions, he can not claim the protection of section 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult t o see how by any judicial valour discretion exercisable in favour of the tenant can be found hi section 12(3) (b) even where the conditions laid down by it are not satisfied. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavans case (supra), in converting the provisions of section 12 (3) (b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear. Section 12 (3) (b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.Lastly we think that the High Court committed a gross error in interfering, upon an application under. article 227 of the Constitution with what was a just and proper exercise of its discretion by the Court of Small Causes in Bombay even on the erroneous view that the Court had a discretion in the matter. The High Court, without even considering or setting aside the findings of the Court in regard to the circumstances calling for the, exercise of a discretion in favour of the appellant. Allowed the application under article 227 of the Constitution. This, we think, was quite unwarranted. We feel certain that the High Court would not have fallen into such an error if its attention was drawn to the law as laid down by this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte &Anr.(A.I.R. 1975 S.C. 1297.). There, this Court, in an appeal by special leave from a judgment of the Bombay High Court observed (at p. 1297):"It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much-of the agony to, which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of the Constitution"8. A finding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In Babhutmal Raichand Oswals case (supra) this Court also said (at p. 1302)"It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority."9. Even that certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is overlooked.10. | 1[ds]The High Court took the view that section 5 (11) (c) applies not only to residential premises but also to business premises and therefore, on the death of a tenant of business premises, any member of tenants family residing with him at the time of his death would become a tenant. We do not think this view taken by the high Court is correct. It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant re siding with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessarily only in case of residential p remises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenants family residing with him at the time of death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant inof the businesspremises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might seem to require it. The principle behind section 5 (1 1) (c) seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit, but also for thehe members of the familyresiding with him and, therefore, when the tenant dies, protection should be extended tomembers of the familywho were participants in thetenancy and for whose needs inter alia the tenancy was originally taken by the tenant. This principle underlying the enactment of Section 5 (II) (c) also goes to indicate that it is in respect of residential p remises that the protection of that section is intended to be given. We can appreciate a provision being made in respect of business premises that on the death of a tenant in respect of such premises, any member of the tenants family carrying on business with the tenant in such premises at the time of Ms death shall be a tenant and the protection of the Rent Act shall be available to him. But we fail to see the purpose the legislature could have had in view in according protection in respect of business premises to a, member of the tenants family residing with him at the time of his death. The basic postulate of the protection under the Rent Act is that the person who is sought to be protected must be in possession of the premise s and his possession is protected by the legislation. But in case of business premises, a member of the family of the tenant residing with him at the time of his death may not be in possessionof the businesspremises; he may be in service or be may be carrying on any other business. And yet on the view taken byCourt, he would become tenant inof the businesspremises with which he has no connection. We are, therefore, in agreement with the view taken by on e of us (Bhagwati J.) in the Gujarat High Court about the correct meaning of Section 5 (11) (c) in Parubai Manilal Brahmin &Ors. v. Baldevdas Zaverbhai Tapodhan ((1964) 5 Gujarat L.R. 563.), in preference to the view adopted in the subsequent decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji ((1971) 12 Gujarat L.R. 272.) which decision was followed by the Bombay High Court in the judgment impugned in the present appeals before us.It is significant to not e that after the decision of Gujarat High Court in Parubai Manilal Brahmin &Ors. v. Baldevdas Zaverbhai Tapodhan (supra) the Gujarat legislature amended the Rent Act by substituting the following provision for section 5 (1 1)(11) (c) (i) in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of. or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and(ii) in relation to premises let for business, trade or storage, any member of the tenants family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as, may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided inor agreement by theamendment was of course necessitated by the decision in Parubai Manilal Brahmin &Ors. v. Baldevdas Zaverbhai Tapodhan (supra) and it cannot, therefore, be relied upon for the purpose of supporting the view taken in that decision. But what is of significance is that when the legislature enacted a provision in regard to business premises in clause (ii) of Section 5 (11) (c), the legislature made it clear that the protection in respect of business premises was intended to be given, not to any member of the tenants family residing with him at the time of his death, but to a member of the tenants family carrying business with him in such premises at the time of his death. The legislative intent, therefore, never was to confer protection in respect of business premises on a member of the tenants family residing with him at the time of his death. This is also a circumstance which supports the view taken by the Gujarat High Court in the earlier decision in Parubai Manilal Brahmin &Ors. v. Baldevdas Zaverbhai Tapodhan and shows that the view taken in the subsequent decision in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji is not correct. Of course, the amendment made in Rent Act in the State of Gujarat cannot assist us in interpreting Section 5 (11) (c) of the Rent Act in the Act of Maharashtra, but it is not wholly irrelevant, since theof the Bombay High Courtin appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabal Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5 (11) (c) applies only in respect of residential premises and since the premise%, in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section 5 (11) (c).Coming now to t he first question to which we referred earlier, we think that the problem of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlals case (supra) followed by t he more recent decision in Harbanslal Jagmohandas &Anr. v. Prabhudas Shivlal([1976] 3 S.C.R. 629.) which completely covers the case beforeis clear to us that the, Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai Patel &Ors.(A.I.R. 1968 Gujarat p. 172.). If there is statutory default or neglect on theof the tenant,whatever may be its cause, the landlord acquires a right under section 12 (3) (a) to get a decree. for eviction. But where the conditions of Section 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12 (3) (b) and defeat the landlords claim for eviction. If, however, he does not fulfill those conditions, he can not claim the protection of section 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult t o see how by any judicial valour discretion exercisable in favour of the tenant can be found hi section 12(3) (b) even where the conditions laid down by it are not satisfied. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavans case (supra), in converting the provisions of section 12 (3) (b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear. Section 12 (3) (b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks theon. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.Lastly we think that the High Court committed a gross error in interfering, upon an application under. article 227 of the Constitution with what was a just and proper exercise of its discretion by the Court of Small Causes in Bombay even on the erroneous view that the Court had a discretion in the matter. The High Court, without even considering or setting aside the findings of the Court in regard to the circumstances calling for the, exercise of a discretion in favour of the appellant. Allowed the application under article 227 of the Constitution. This, we think, was quite unwarranted. We feel certain that the High Court would not have fallen into such an error if its attention was drawn to the law as laid down by this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte &Anr.(A.I.R. 1975 S.C. 1297.). There, this Court, in an appeal by special leave from aof the Bombay High Courtobserved (at p.is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end.the agony to, which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of thefinding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In Babhutmal Raichand Oswals case (supra) this Court also said (at p.would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of itsthat certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is overlooked. | 1 | 4,090 | 2,326 | ### 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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Maharashtra, but it is not wholly irrelevant, since the judgment of the Bombay High Court in appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabal Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5 (11) (c) applies only in respect of residential premises and since the premise%, in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section 5 (11) (c).Coming now to t he first question to which we referred earlier, we think that the problem of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlals case (supra) followed by t he more recent decision in Harbanslal Jagmohandas &Anr. v. Prabhudas Shivlal([1976] 3 S.C.R. 629.) which completely covers the case before us.7. It is clear to us that the, Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai Patel &Ors.(A.I.R. 1968 Gujarat p. 172.). If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under section 12 (3) (a) to get a decree. for eviction. But where the conditions of Section 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12 (3) (b) and defeat the landlords claim for eviction. If, however, he does not fulfill those conditions, he can not claim the protection of section 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult t o see how by any judicial valour discretion exercisable in favour of the tenant can be found hi section 12(3) (b) even where the conditions laid down by it are not satisfied. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavans case (supra), in converting the provisions of section 12 (3) (b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear. Section 12 (3) (b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.Lastly we think that the High Court committed a gross error in interfering, upon an application under. article 227 of the Constitution with what was a just and proper exercise of its discretion by the Court of Small Causes in Bombay even on the erroneous view that the Court had a discretion in the matter. The High Court, without even considering or setting aside the findings of the Court in regard to the circumstances calling for the, exercise of a discretion in favour of the appellant. Allowed the application under article 227 of the Constitution. This, we think, was quite unwarranted. We feel certain that the High Court would not have fallen into such an error if its attention was drawn to the law as laid down by this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte &Anr.(A.I.R. 1975 S.C. 1297.). There, this Court, in an appeal by special leave from a judgment of the Bombay High Court observed (at p. 1297):"It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much-of the agony to, which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of the Constitution"8. A finding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In Babhutmal Raichand Oswals case (supra) this Court also said (at p. 1302)"It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority."9. Even that certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is overlooked.10.
### Response:
1
### Explanation:
the amendment made in Rent Act in the State of Gujarat cannot assist us in interpreting Section 5 (11) (c) of the Rent Act in the Act of Maharashtra, but it is not wholly irrelevant, since theof the Bombay High Courtin appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabal Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5 (11) (c) applies only in respect of residential premises and since the premise%, in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section 5 (11) (c).Coming now to t he first question to which we referred earlier, we think that the problem of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlals case (supra) followed by t he more recent decision in Harbanslal Jagmohandas &Anr. v. Prabhudas Shivlal([1976] 3 S.C.R. 629.) which completely covers the case beforeis clear to us that the, Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai Patel &Ors.(A.I.R. 1968 Gujarat p. 172.). If there is statutory default or neglect on theof the tenant,whatever may be its cause, the landlord acquires a right under section 12 (3) (a) to get a decree. for eviction. But where the conditions of Section 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12 (3) (b) and defeat the landlords claim for eviction. If, however, he does not fulfill those conditions, he can not claim the protection of section 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult t o see how by any judicial valour discretion exercisable in favour of the tenant can be found hi section 12(3) (b) even where the conditions laid down by it are not satisfied. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavans case (supra), in converting the provisions of section 12 (3) (b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear. Section 12 (3) (b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks theon. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.Lastly we think that the High Court committed a gross error in interfering, upon an application under. article 227 of the Constitution with what was a just and proper exercise of its discretion by the Court of Small Causes in Bombay even on the erroneous view that the Court had a discretion in the matter. The High Court, without even considering or setting aside the findings of the Court in regard to the circumstances calling for the, exercise of a discretion in favour of the appellant. Allowed the application under article 227 of the Constitution. This, we think, was quite unwarranted. We feel certain that the High Court would not have fallen into such an error if its attention was drawn to the law as laid down by this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte &Anr.(A.I.R. 1975 S.C. 1297.). There, this Court, in an appeal by special leave from aof the Bombay High Courtobserved (at p.is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end.the agony to, which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of thefinding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In Babhutmal Raichand Oswals case (supra) this Court also said (at p.would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of itsthat certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is overlooked.
|
SUSHIL KUMAR Vs. THE STATE OF HARYANA & ORS | Provided that list B-1 shall not be final until the same is approved by the Inspector General of Police/Deputy Inspector General of Police, who is the controlling officer of the said Superintendent of Police or Commandant. The Inspector General of Police/Deputy Inspector General of Police shall accord his approval only after due scrutiny of the list about its correctness. He will also be competent to refer the list back to the Superintendent of Police or Commandant from whom it had been received for correction of errors/omission, if any, in the list and will also be competent to seek clarification about some points from the Departmental Promotion Committee if he considers necessary. 7. The mandate of the above rule for appointment to the post of Head Constable under the aforementioned 10% quota for outstanding performance can be restated as under - 7.1 There shall be a Departmental Promotion Committee (DPC) in every district/unit comprising of the SP/ Commandant and two Deputy Superintendent of Police, headed by the SP. 7.2 The DPC shall prepare a list called List B-I. The list will be prepared from among the eligible candidates to be appointed the requirement of which is specified under Rule 13.7. All constables irrespective of their educational qualifications shall be eligible to be brought on list B-I on the basis of consistent outstanding performance in job or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. 7.3 The List prepared by the DPC, headed by the SP will be forwarded to the Inspector General of Police/ Deputy Inspector General of Police (hereinafter IG/DIG) who is the Cadre Controlling Officer of the SP/Commandant. (i) The IG/DIG will undertake and examine its correctness. (ii) The IG/DIG will be competent to seek clarifications from the DPC if he considers it to be necessary. (iii) He is also competent to refer the list back to the SP for correction of any error or omission. (iv) The IG/DIG shall thereafter accord his approval. (v) It is specifically provided that the List shall not be final until the same is approved by the IG/DIG. 7.4 IG/DIG shall send its recommendations on behalf of each unit to the CDPC. The CDPC is appointed by the Director General of Police, (hereinafter the DGP). 7.5 Finally, the 10% quota is allocated out of a State Level Comparative Merit List prepared on the basis of the list sent from each unit by the IG. Findings- 8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons- 8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable. 8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9). 8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities. 8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself. | 0[ds]8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons-8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable.8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9).8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities.8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself. | 0 | 2,569 | 607 | ### 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:
Provided that list B-1 shall not be final until the same is approved by the Inspector General of Police/Deputy Inspector General of Police, who is the controlling officer of the said Superintendent of Police or Commandant. The Inspector General of Police/Deputy Inspector General of Police shall accord his approval only after due scrutiny of the list about its correctness. He will also be competent to refer the list back to the Superintendent of Police or Commandant from whom it had been received for correction of errors/omission, if any, in the list and will also be competent to seek clarification about some points from the Departmental Promotion Committee if he considers necessary. 7. The mandate of the above rule for appointment to the post of Head Constable under the aforementioned 10% quota for outstanding performance can be restated as under - 7.1 There shall be a Departmental Promotion Committee (DPC) in every district/unit comprising of the SP/ Commandant and two Deputy Superintendent of Police, headed by the SP. 7.2 The DPC shall prepare a list called List B-I. The list will be prepared from among the eligible candidates to be appointed the requirement of which is specified under Rule 13.7. All constables irrespective of their educational qualifications shall be eligible to be brought on list B-I on the basis of consistent outstanding performance in job or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. 7.3 The List prepared by the DPC, headed by the SP will be forwarded to the Inspector General of Police/ Deputy Inspector General of Police (hereinafter IG/DIG) who is the Cadre Controlling Officer of the SP/Commandant. (i) The IG/DIG will undertake and examine its correctness. (ii) The IG/DIG will be competent to seek clarifications from the DPC if he considers it to be necessary. (iii) He is also competent to refer the list back to the SP for correction of any error or omission. (iv) The IG/DIG shall thereafter accord his approval. (v) It is specifically provided that the List shall not be final until the same is approved by the IG/DIG. 7.4 IG/DIG shall send its recommendations on behalf of each unit to the CDPC. The CDPC is appointed by the Director General of Police, (hereinafter the DGP). 7.5 Finally, the 10% quota is allocated out of a State Level Comparative Merit List prepared on the basis of the list sent from each unit by the IG. Findings- 8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons- 8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable. 8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9). 8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities. 8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself.
### Response:
0
### Explanation:
8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons-8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable.8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9).8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities.8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself.
|
Keshav Laxman Borkar Vs. Dr. Deorao Laxman Anande | been heard ex parte.3. The only point for our determination is whether the Election Tribunal was in error in declaring the present appellant to have been duly elected. The answer to this question depends upon a true construction of S. 101 of the Representation of the People Act, 1951 (hereinafter called the Act), which reads as follows :"Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected :If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion -(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."In this case the appellant in his Election Petition had, in addition to calling in question the election of the respondent, asked for a declaration that he himself had been duly elected. As already stated, the Tribunal was of the opinion, that the respondents election having been set aside the appellant alone was left in the field and must be regarded as having received a majority of the valid votes and on that basis declared the appellant as duly elected. The High Court has taken a different view. The question is whether the High Court was right.4. The expression "valid votes" is nowhere defined in the Act; but considerable light is thrown on the matter by the provisions of S. 36(8) of the Act, which runs as follows :"36. Scrutiny of nominationa :......................................................................................................8. Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates, whose nominations have been found valid, and affix it to his notice board."Rule 58 framed under the Act, which was in force at the material time, in so far as it is relevant for our present purpose, runs as under :"58. Counting of votes and ballot papers:(1) Every ballot paper which is not rejeoted under R. 57 shall be deemed to be valid and shall be counted :Provided that no packet containing tendered ballot papers shall be opened and no such ballot paper shall be counted.......................................................................................................From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannot prevail.5. It is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do. | 0[ds]From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannotIt is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do. | 0 | 1,815 | 600 | ### 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:
been heard ex parte.3. The only point for our determination is whether the Election Tribunal was in error in declaring the present appellant to have been duly elected. The answer to this question depends upon a true construction of S. 101 of the Representation of the People Act, 1951 (hereinafter called the Act), which reads as follows :"Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected :If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion -(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."In this case the appellant in his Election Petition had, in addition to calling in question the election of the respondent, asked for a declaration that he himself had been duly elected. As already stated, the Tribunal was of the opinion, that the respondents election having been set aside the appellant alone was left in the field and must be regarded as having received a majority of the valid votes and on that basis declared the appellant as duly elected. The High Court has taken a different view. The question is whether the High Court was right.4. The expression "valid votes" is nowhere defined in the Act; but considerable light is thrown on the matter by the provisions of S. 36(8) of the Act, which runs as follows :"36. Scrutiny of nominationa :......................................................................................................8. Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates, whose nominations have been found valid, and affix it to his notice board."Rule 58 framed under the Act, which was in force at the material time, in so far as it is relevant for our present purpose, runs as under :"58. Counting of votes and ballot papers:(1) Every ballot paper which is not rejeoted under R. 57 shall be deemed to be valid and shall be counted :Provided that no packet containing tendered ballot papers shall be opened and no such ballot paper shall be counted.......................................................................................................From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannot prevail.5. It is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do.
### Response:
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### Explanation:
From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannotIt is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do.
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Badru through L.R. and Ors Vs. NTPC Limited and Ors | Civil Court for determination of the compensation offered by the LAO.7. The Reference Court (Civil Court) by award dated 31.03.2009 partly allowed the reference in favour of the appellants and enhanced the compensation from Rs.3,87,383/¬ to Rs.5,00,000/¬ per bigha. In other words, the Reference Court, after appreciating the evidence, held that the appellants are entitled to claim compensation at the rate of Rs.5,00,000/¬ per bigha.8. The State and NTPC felt aggrieved by the award of the Reference Court and filed appeals before the High Court of Himachal Pradesh under Section 54 of the Act. The appellants instead of filing regular appeal against the award of reference Court filed cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) in the respondents? appeals and sought enhancement in the compensation awarded by the Reference Court to them.9. By impugned order, the High Court dismissed the appeals filed by the NTPC/State and, in consequence, also dismissed the cross objection filed by the appellants. The effect of the dismissal of the appeals and cross objection was upholding of the award passed by the Reference Court (Civil Court). The landowners felt aggrieved by the rejection of their cross objection and they have filed the present appeals by way of special leave in this Court.10. So, the only question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? cross objection. Since the respondents herein (State and NTPC) did not file any special leave to appeal in this Court against that part of the order of the High Court, which resulted in dismissal of their appeal, it has attained finality qua the respondents.11. In other words, we are not required to examine the question as to whether the High Court was justified in dismissing the respondents? appeals for two reasons: first, these appeals are filed by the landowners against the rejection of their cross objection and second, the respondents did not file any appeal against the dismissal of their appeal by the High Court.12. Heard learned counsel for the parties.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order insofar as it relates to the dismissal of the cross objection, remand the case (cross objection) to the High Court for deciding the cross objection on its merits in accordance with law.14. Two questions fell for consideration before the High Court: first, whether the Reference Court was right in awarding Rs.5,00,000/¬ per bigha by way of compensation to the landowners and second, whether any case was made out for enhancement of the amount of compensation than what was awarded to them by the Reference Court by its award dated 31.03.2009.15. So far as first question is concerned, it was required to be decided by the High Court at the instance of the State/NTPC in their appeals whereas so far as the second question is concerned, it was required to be decided at the instance of the landowners in their cross objection.16. It cannot be disputed that the appellants (landowners) had two remedies to question the legality or/and correctness of the award passed by the Reference Court. One remedy was by way of appeal under Section 54 of the Act and the other remedy was to file cross objection under Order 41 Rule 22 of the Code in the appeal filed by the State/NTPC. In this case, the landowners took recourse to second remedy of filing the cross objection under Order 41 Rule 22 of the Code.17. The High Court having dismissed the appeals filed by the State/NTPC was, therefore, required to examine as to whether any case was made out by the landowners (appellants herein) in their cross objection for enhancement of compensation.18. We find from the impugned order that the High Court, in para 24, dismissed the cross objection without assigning any reason. The order rejecting the cross objection reads as under:24. Cross objection, if any, shall also stand disposed of.19. Order 41 Rule 22(4) of the Code, provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.20. In our considered opinion, merely because the High Court dismissed the appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners? cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons.21. In other words, even though the High Court dismissed the appeals of the State/NTPC on merits yet it was obligatory on the part of the High Court to have independently examined the issues raised by the landowners (respondents in appeal) before the High Court in the cross objection with a view to find out as to whether any case was made out on facts by the landowners for further enhancement in the compensation and, if so, to what extent. The question as to whether any case for enhancement of compensation is made out or not was required to be decided on appreciation of the evidence adduced by the parties on the issue of market value of the acquired land keeping in view the parameters laid down in Section 23 of the Act.22. In our view, the High Court failed to examine the aforesaid question while dealing with the cross objection of the landowners and wrongly rejected it without assigning any reason as is clear from the order quoted above. Rejection of cross objection without any discussion and reason cannot be countenanced. It is not, therefore, legally sustainable. | 1[ds]11. In other words, we are not required to examine the question as to whether the High Court was justified in dismissing the respondents? appeals for two reasons: first, these appeals are filed by the landowners against the rejection of their cross objection and second, the respondents did not file any appeal against the dismissal of their appeal by the High Court.Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order insofar as it relates to the dismissal of the cross objection, remand the case (cross objection) to the High Court for deciding the cross objection on its merits in accordance with law.Two questions fell for consideration before the High Court: first, whether the Reference Court was right in awarding Rs.5,00,000/¬ per bigha by way of compensation to the landowners and second, whether any case was made out for enhancement of the amount of compensation than what was awarded to them by the Reference Court by its award dated 31.03.2009.So far as first question is concerned, it was required to be decided by the High Court at the instance of the State/NTPC in their appeals whereas so far as the second question is concerned, it was required to be decided at the instance of the landowners in their cross objection.It cannot be disputed that the appellants (landowners) had two remedies to question the legality or/and correctness of the award passed by the Reference Court. One remedy was by way of appeal under Section 54 of the Act and the other remedy was to file cross objection under Order 41 Rule 22 of the Code in the appeal filed by the State/NTPC. In this case, the landowners took recourse to second remedy of filing the cross objection under Order 41 Rule 22 of the Code.The High Court having dismissed the appeals filed by the State/NTPC was, therefore, required to examine as to whether any case was made out by the landowners (appellants herein) in their cross objection for enhancement of compensation.We find from the impugned order that the High Court, in para 24, dismissed the cross objection without assigning any reason.Order 41 Rule 22(4) of the Code, provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.In our considered opinion, merely because the High Court dismissed the appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners? cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons.In other words, even though the High Court dismissed the appeals of the State/NTPC on merits yet it was obligatory on the part of the High Court to have independently examined the issues raised by the landowners (respondents in appeal) before the High Court in the cross objection with a view to find out as to whether any case was made out on facts by the landowners for further enhancement in the compensation and, if so, to what extent. The question as to whether any case for enhancement of compensation is made out or not was required to be decided on appreciation of the evidence adduced by the parties on the issue of market value of the acquired land keeping in view the parameters laid down in Section 23 of the Act.In our view, the High Court failed to examine the aforesaid question while dealing with the cross objection of the landowners and wrongly rejected it without assigning any reason as is clear from the order quoted above. Rejection of cross objection without any discussion and reason cannot be countenanced. It is not, therefore, legally sustainable. | 1 | 1,383 | 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.
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Civil Court for determination of the compensation offered by the LAO.7. The Reference Court (Civil Court) by award dated 31.03.2009 partly allowed the reference in favour of the appellants and enhanced the compensation from Rs.3,87,383/¬ to Rs.5,00,000/¬ per bigha. In other words, the Reference Court, after appreciating the evidence, held that the appellants are entitled to claim compensation at the rate of Rs.5,00,000/¬ per bigha.8. The State and NTPC felt aggrieved by the award of the Reference Court and filed appeals before the High Court of Himachal Pradesh under Section 54 of the Act. The appellants instead of filing regular appeal against the award of reference Court filed cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) in the respondents? appeals and sought enhancement in the compensation awarded by the Reference Court to them.9. By impugned order, the High Court dismissed the appeals filed by the NTPC/State and, in consequence, also dismissed the cross objection filed by the appellants. The effect of the dismissal of the appeals and cross objection was upholding of the award passed by the Reference Court (Civil Court). The landowners felt aggrieved by the rejection of their cross objection and they have filed the present appeals by way of special leave in this Court.10. So, the only question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? cross objection. Since the respondents herein (State and NTPC) did not file any special leave to appeal in this Court against that part of the order of the High Court, which resulted in dismissal of their appeal, it has attained finality qua the respondents.11. In other words, we are not required to examine the question as to whether the High Court was justified in dismissing the respondents? appeals for two reasons: first, these appeals are filed by the landowners against the rejection of their cross objection and second, the respondents did not file any appeal against the dismissal of their appeal by the High Court.12. Heard learned counsel for the parties.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order insofar as it relates to the dismissal of the cross objection, remand the case (cross objection) to the High Court for deciding the cross objection on its merits in accordance with law.14. Two questions fell for consideration before the High Court: first, whether the Reference Court was right in awarding Rs.5,00,000/¬ per bigha by way of compensation to the landowners and second, whether any case was made out for enhancement of the amount of compensation than what was awarded to them by the Reference Court by its award dated 31.03.2009.15. So far as first question is concerned, it was required to be decided by the High Court at the instance of the State/NTPC in their appeals whereas so far as the second question is concerned, it was required to be decided at the instance of the landowners in their cross objection.16. It cannot be disputed that the appellants (landowners) had two remedies to question the legality or/and correctness of the award passed by the Reference Court. One remedy was by way of appeal under Section 54 of the Act and the other remedy was to file cross objection under Order 41 Rule 22 of the Code in the appeal filed by the State/NTPC. In this case, the landowners took recourse to second remedy of filing the cross objection under Order 41 Rule 22 of the Code.17. The High Court having dismissed the appeals filed by the State/NTPC was, therefore, required to examine as to whether any case was made out by the landowners (appellants herein) in their cross objection for enhancement of compensation.18. We find from the impugned order that the High Court, in para 24, dismissed the cross objection without assigning any reason. The order rejecting the cross objection reads as under:24. Cross objection, if any, shall also stand disposed of.19. Order 41 Rule 22(4) of the Code, provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.20. In our considered opinion, merely because the High Court dismissed the appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners? cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons.21. In other words, even though the High Court dismissed the appeals of the State/NTPC on merits yet it was obligatory on the part of the High Court to have independently examined the issues raised by the landowners (respondents in appeal) before the High Court in the cross objection with a view to find out as to whether any case was made out on facts by the landowners for further enhancement in the compensation and, if so, to what extent. The question as to whether any case for enhancement of compensation is made out or not was required to be decided on appreciation of the evidence adduced by the parties on the issue of market value of the acquired land keeping in view the parameters laid down in Section 23 of the Act.22. In our view, the High Court failed to examine the aforesaid question while dealing with the cross objection of the landowners and wrongly rejected it without assigning any reason as is clear from the order quoted above. Rejection of cross objection without any discussion and reason cannot be countenanced. It is not, therefore, legally sustainable.
### Response:
1
### Explanation:
11. In other words, we are not required to examine the question as to whether the High Court was justified in dismissing the respondents? appeals for two reasons: first, these appeals are filed by the landowners against the rejection of their cross objection and second, the respondents did not file any appeal against the dismissal of their appeal by the High Court.Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order insofar as it relates to the dismissal of the cross objection, remand the case (cross objection) to the High Court for deciding the cross objection on its merits in accordance with law.Two questions fell for consideration before the High Court: first, whether the Reference Court was right in awarding Rs.5,00,000/¬ per bigha by way of compensation to the landowners and second, whether any case was made out for enhancement of the amount of compensation than what was awarded to them by the Reference Court by its award dated 31.03.2009.So far as first question is concerned, it was required to be decided by the High Court at the instance of the State/NTPC in their appeals whereas so far as the second question is concerned, it was required to be decided at the instance of the landowners in their cross objection.It cannot be disputed that the appellants (landowners) had two remedies to question the legality or/and correctness of the award passed by the Reference Court. One remedy was by way of appeal under Section 54 of the Act and the other remedy was to file cross objection under Order 41 Rule 22 of the Code in the appeal filed by the State/NTPC. In this case, the landowners took recourse to second remedy of filing the cross objection under Order 41 Rule 22 of the Code.The High Court having dismissed the appeals filed by the State/NTPC was, therefore, required to examine as to whether any case was made out by the landowners (appellants herein) in their cross objection for enhancement of compensation.We find from the impugned order that the High Court, in para 24, dismissed the cross objection without assigning any reason.Order 41 Rule 22(4) of the Code, provides that where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.In our considered opinion, merely because the High Court dismissed the appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners? cross objection also. In our view, the cross objection had to be disposed of on its merits notwithstanding the dismissal of the appeals as provided by in Order 41 Rule 22 (4) of the Code by assigning reasons.In other words, even though the High Court dismissed the appeals of the State/NTPC on merits yet it was obligatory on the part of the High Court to have independently examined the issues raised by the landowners (respondents in appeal) before the High Court in the cross objection with a view to find out as to whether any case was made out on facts by the landowners for further enhancement in the compensation and, if so, to what extent. The question as to whether any case for enhancement of compensation is made out or not was required to be decided on appreciation of the evidence adduced by the parties on the issue of market value of the acquired land keeping in view the parameters laid down in Section 23 of the Act.In our view, the High Court failed to examine the aforesaid question while dealing with the cross objection of the landowners and wrongly rejected it without assigning any reason as is clear from the order quoted above. Rejection of cross objection without any discussion and reason cannot be countenanced. It is not, therefore, legally sustainable.
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Commercial Taxes Officer, Circle-B, Bharatpur Vs. Bhagat Singh | under this Act were a tax under the said Act. 7. Applicability of the provisions of the Rajasthan Sales Tax Act, 1954 (Act No. 29 of 1954) and the rules made thereunder.—Subject to the provisions of this Act and the rules made thereunder, the authorities empowered to asses, reassess, collect and enforce payment of tax under the Rajasthan Sales Tax Act, 1954 (Act No. 29 of 1954) shall assess, reassess, collect and enforce payment of tax including penalty or interest payable by an importer under this Act as if the tax, penalty or interest were payable under the said Act, and for this purpose they may exercise all or any of the powers assigned to them under the said Act and all the provisions of the said Act and the rules made thereunder for the time being in force including the provisions relating to returns, advance, payment of tax, provisional assessments, recover of tax, appeals, rebates, penalties, interest, compounding of offences and other miscellaneous matters shall, mutatis mutandis, apply. 10. Under section 2(ccc) of the Rajasthan Sales Tax Act, 1994 Casual Trader means a person who has, whether as principal, agent or in any capacity, occasional transaction of business nature involving the buying, selling, supply or distribution of such goods as may be specified by the State Government by notification in the official gazette whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration. 11. Sections 10A and 10B of the Rajasthan Sales Tax Act pertain to assessment and the time limit for assessment in the case of a Casual Trader. Section 10A(1) read with Section 10A(2) of the Rajasthan Sales Tax Act, 1954 provides that every Casual Trader, on completion of a transaction of sale or purchase, for which he is liable to pay tax, shall make a report to the Assessing Officer or to the Officer-in-charge of a Check Post, of the sale or purchase price, tax payable thereon, etc. and deposit the tax with such officer. Sub-section (3) of Section 10 enables the Assessing Officer to assess the tax payable by a Casual Trader on his failure to make a report. 12. Section 10B(1) (iii) of the Rajasthan Sales Tax Act, 1954, which stipulates the time limit for assessment, is set out hereinbelow for convenience: 10B. Time Limit for Assessment— (1) No assessment shall be made — (i) ….. (ii) ….. (iii) in cases falling under section 10A after expiry of one year from the date of filing the report, and in the absence of any such report, after the expiry of two years from the date of the transaction. 13. In the case of a Casual Trader, the time limit for assessment is one year from the date of making the report, and if no report is made, within two years from the date of the transaction. The date of transaction in this case is 26-12-2009. The question is whether assessment was barred upon expiry of two years from the date of transaction, and/or in other words after 25/26-12-2011. 14. In this Special Leave Petition, the main contention of the Petitioner is that a single transaction of purchase of a motor vehicle does not bring a person within the definition of Casual Trader. Casual Trader envisages occasional transactions of business involving buying and selling of goods. The plurality of transactions is a condition precedent for treating a trader as a Casual Trader. It is contended that there was only a single transaction in this case. The Respondent could not, therefore, be held a Casual Trader. 15. The Appellate Authority, the Rajasthan Tax Board and the High Court have concurred in arriving at the finding that the assessment of the Respondent was barred by limitation as the Respondent was a Casual Trader. A perusal of the definition of Casual Trader makes it amply clear that a person with occasional transactions of buying/selling are to be treated as casual traders, for whom a shorter time limit for assessment has been imposed under section 10B(iii) read with Section 10A of the Rajasthan Sales Tax Act 1954. The Legislature could not, possibly, have intended that a person making 2 or 3 transactions should be treated as a Casual Trader, but a person making only one transaction should be treated at par with regular traders. 16. It is well settled that in construing a statutory provision, words in the singular are to include the plural and vice versa, unless repugnant to the context in which the expression has been used, as provided in Section 13(2) of the General Clauses Act, 1897 and provisions identical thereto in State enactments pertaining to General Clauses. 17. Relying on Section 13(b) of the Bombay General Clauses Act, 1904, which states that words in the singular shall include the plural, and vice versa, this Court has held that the expression any bodies or persons in Section 43-A(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, will include a singular person, in the same way as the expression leases in the provision will include a single lease. (Govinda Bala Patil v. Ganpati Ramchandra Naikwade [2013] 5 SCC 644) 18. The Court must interpret a statute in a manner which is just, reasonable and sensible. If the grammatical construction leads to some absurdity or some repugnancy or inconsistency with the legislative intent, as may be deduced by reading the provisions of the statute as a whole, the grammatical construction may be departed from to avoid anomaly, absurdity or inconsistency. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar Singh AIR 1955 SC 830 (at 833), where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This view has been reiterated by this Court. | 0[ds]Casual Trader envisages occasional transactions of business involving buying and selling of goods. The plurality of transactions is a condition precedent for treating a trader as a Casual Trader. It is contended that there was only a single transaction in this case. The Respondent could not, therefore, be held a Casual Trader.15. The Appellate Authority, the Rajasthan Tax Board and the High Court have concurred in arriving at the finding that the assessment of the Respondent was barred by limitation as the Respondent was a Casual Trader. A perusal of the definition of Casual Trader makes it amply clear that a person with occasional transactions of buying/selling are to be treated as casual traders, for whom a shorter time limit for assessment has been imposed under section 10B(iii) read with Section 10A of the Rajasthan Sales Tax Act 1954. The Legislature could not, possibly, have intended that a person making 2 or 3 transactions should be treated as a Casual Trader, but a person making only one transaction should be treated at par with regular traders.16. It is well settled that in construing a statutory provision, words in the singular are to include the plural and vice versa, unless repugnant to the context in which the expression has been used, as provided in Section 13(2) of the General Clauses Act, 1897 and provisions identical thereto in State enactments pertaining to General Clauses.17. Relying on Section 13(b) of the Bombay General Clauses Act, 1904, which states that words in the singular shall include the plural, and vice versa, this Court has held that the expression any bodies or persons in Section 43-A(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, will include a singular person, in the same way as the expression leases in the provision will include a single lease. (Govinda Bala Patil v. Ganpati Ramchandra Naikwade [2013] 5 SCC 644)18. The Court must interpret a statute in a manner which is just, reasonable and sensible. If the grammatical construction leads to some absurdity or some repugnancy or inconsistency with the legislative intent, as may be deduced by reading the provisions of the statute as a whole, the grammatical construction may be departed from to avoid anomaly, absurdity or inconsistency. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar Singh AIR 1955 SC 830 (at 833), where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This view has been reiterated by this Court.19. We, therefore, find no grounds to interfere with judgment and order impugned, under Article 136 of the Constitution of India in a catena of subsequent decisions. | 0 | 2,355 | 555 | ### 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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under this Act were a tax under the said Act. 7. Applicability of the provisions of the Rajasthan Sales Tax Act, 1954 (Act No. 29 of 1954) and the rules made thereunder.—Subject to the provisions of this Act and the rules made thereunder, the authorities empowered to asses, reassess, collect and enforce payment of tax under the Rajasthan Sales Tax Act, 1954 (Act No. 29 of 1954) shall assess, reassess, collect and enforce payment of tax including penalty or interest payable by an importer under this Act as if the tax, penalty or interest were payable under the said Act, and for this purpose they may exercise all or any of the powers assigned to them under the said Act and all the provisions of the said Act and the rules made thereunder for the time being in force including the provisions relating to returns, advance, payment of tax, provisional assessments, recover of tax, appeals, rebates, penalties, interest, compounding of offences and other miscellaneous matters shall, mutatis mutandis, apply. 10. Under section 2(ccc) of the Rajasthan Sales Tax Act, 1994 Casual Trader means a person who has, whether as principal, agent or in any capacity, occasional transaction of business nature involving the buying, selling, supply or distribution of such goods as may be specified by the State Government by notification in the official gazette whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration. 11. Sections 10A and 10B of the Rajasthan Sales Tax Act pertain to assessment and the time limit for assessment in the case of a Casual Trader. Section 10A(1) read with Section 10A(2) of the Rajasthan Sales Tax Act, 1954 provides that every Casual Trader, on completion of a transaction of sale or purchase, for which he is liable to pay tax, shall make a report to the Assessing Officer or to the Officer-in-charge of a Check Post, of the sale or purchase price, tax payable thereon, etc. and deposit the tax with such officer. Sub-section (3) of Section 10 enables the Assessing Officer to assess the tax payable by a Casual Trader on his failure to make a report. 12. Section 10B(1) (iii) of the Rajasthan Sales Tax Act, 1954, which stipulates the time limit for assessment, is set out hereinbelow for convenience: 10B. Time Limit for Assessment— (1) No assessment shall be made — (i) ….. (ii) ….. (iii) in cases falling under section 10A after expiry of one year from the date of filing the report, and in the absence of any such report, after the expiry of two years from the date of the transaction. 13. In the case of a Casual Trader, the time limit for assessment is one year from the date of making the report, and if no report is made, within two years from the date of the transaction. The date of transaction in this case is 26-12-2009. The question is whether assessment was barred upon expiry of two years from the date of transaction, and/or in other words after 25/26-12-2011. 14. In this Special Leave Petition, the main contention of the Petitioner is that a single transaction of purchase of a motor vehicle does not bring a person within the definition of Casual Trader. Casual Trader envisages occasional transactions of business involving buying and selling of goods. The plurality of transactions is a condition precedent for treating a trader as a Casual Trader. It is contended that there was only a single transaction in this case. The Respondent could not, therefore, be held a Casual Trader. 15. The Appellate Authority, the Rajasthan Tax Board and the High Court have concurred in arriving at the finding that the assessment of the Respondent was barred by limitation as the Respondent was a Casual Trader. A perusal of the definition of Casual Trader makes it amply clear that a person with occasional transactions of buying/selling are to be treated as casual traders, for whom a shorter time limit for assessment has been imposed under section 10B(iii) read with Section 10A of the Rajasthan Sales Tax Act 1954. The Legislature could not, possibly, have intended that a person making 2 or 3 transactions should be treated as a Casual Trader, but a person making only one transaction should be treated at par with regular traders. 16. It is well settled that in construing a statutory provision, words in the singular are to include the plural and vice versa, unless repugnant to the context in which the expression has been used, as provided in Section 13(2) of the General Clauses Act, 1897 and provisions identical thereto in State enactments pertaining to General Clauses. 17. Relying on Section 13(b) of the Bombay General Clauses Act, 1904, which states that words in the singular shall include the plural, and vice versa, this Court has held that the expression any bodies or persons in Section 43-A(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, will include a singular person, in the same way as the expression leases in the provision will include a single lease. (Govinda Bala Patil v. Ganpati Ramchandra Naikwade [2013] 5 SCC 644) 18. The Court must interpret a statute in a manner which is just, reasonable and sensible. If the grammatical construction leads to some absurdity or some repugnancy or inconsistency with the legislative intent, as may be deduced by reading the provisions of the statute as a whole, the grammatical construction may be departed from to avoid anomaly, absurdity or inconsistency. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar Singh AIR 1955 SC 830 (at 833), where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This view has been reiterated by this Court.
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Casual Trader envisages occasional transactions of business involving buying and selling of goods. The plurality of transactions is a condition precedent for treating a trader as a Casual Trader. It is contended that there was only a single transaction in this case. The Respondent could not, therefore, be held a Casual Trader.15. The Appellate Authority, the Rajasthan Tax Board and the High Court have concurred in arriving at the finding that the assessment of the Respondent was barred by limitation as the Respondent was a Casual Trader. A perusal of the definition of Casual Trader makes it amply clear that a person with occasional transactions of buying/selling are to be treated as casual traders, for whom a shorter time limit for assessment has been imposed under section 10B(iii) read with Section 10A of the Rajasthan Sales Tax Act 1954. The Legislature could not, possibly, have intended that a person making 2 or 3 transactions should be treated as a Casual Trader, but a person making only one transaction should be treated at par with regular traders.16. It is well settled that in construing a statutory provision, words in the singular are to include the plural and vice versa, unless repugnant to the context in which the expression has been used, as provided in Section 13(2) of the General Clauses Act, 1897 and provisions identical thereto in State enactments pertaining to General Clauses.17. Relying on Section 13(b) of the Bombay General Clauses Act, 1904, which states that words in the singular shall include the plural, and vice versa, this Court has held that the expression any bodies or persons in Section 43-A(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, will include a singular person, in the same way as the expression leases in the provision will include a single lease. (Govinda Bala Patil v. Ganpati Ramchandra Naikwade [2013] 5 SCC 644)18. The Court must interpret a statute in a manner which is just, reasonable and sensible. If the grammatical construction leads to some absurdity or some repugnancy or inconsistency with the legislative intent, as may be deduced by reading the provisions of the statute as a whole, the grammatical construction may be departed from to avoid anomaly, absurdity or inconsistency. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar Singh AIR 1955 SC 830 (at 833), where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This view has been reiterated by this Court.19. We, therefore, find no grounds to interfere with judgment and order impugned, under Article 136 of the Constitution of India in a catena of subsequent decisions.
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M/S. Crown Consultants Private Limited Vs. Commissioner of Income Tax-4 & Another | disclosure as it evident from the following:-(i) The response of Not applicable in column 24(a) and (b) of Form 3CD was correct disclosure. The column 24(a) and (b) of Form 3CD in the context of taking of loans/deposits or repayment of loan/deposits exceeding the specified limits provided under Section 269 SS and 269T of the Act for being visted with penalty. The columns were not applicable to the petitioners case;(ii) The margin money received by it from its Directors and their family members have in fact been disclosed in its financial statement as reflected in Schedule 8 appended to the balance sheet for the year ending 31 March 2007; and (iii) So far as the loan of Rs.1,19,42,900/- received by the petitioners from its directors and their family members is concerned it is submitted that the same was not a loan but the amounts received by way of margin money. These amounts as margin money were reflected in Schedule 8 appended to the balance sheet of the year ending 31 March 2007.In view of the above, it was submitted that the reasons for reopening do not disclose a reasonable belief that income chargeable to tax has escaped assessment. In any event, there has been no failure on the part of the petitioner to make a full and true disclosure for the purpose of assessment.5) As against the above, Shri. Suresh Kumar, learned Counsel for the revenue seeks to sustain the notice dated 28 September 2012 issued under Section 148 by placing reliance on one of the reasons for reopening the assessment i.e. on verification of the accounts the petitioners directors and their family members it was revealed that an amount of Rs.1,19,42,900/- was received by the petitioner and the same has not been disclosed by the petitioner in its financial statement. Thus, there has been a failure on the part of the petitioner to truly and fully disclose all facts necessary for assessment. It is this further information which would have to be examined during the reassessment proceeding.6) Mr. Suresh Kumar invites our attention to the petitioners objections dated 5 November 2012 to the grounds for reopening of the assessment. The petitioner in its objection has not categorically stated that the amount of Rs.1,19, 42,900/- which the Assessing Officer calls an undisclosed loan was in fact margin money and reflected as part of Schedule 8 to the balance sheet. It is being urged for the first time in the petition. The response in the petitioners objections to the above ground is that it is not required to furnish details of the accounts of its directors and their family members in its return of income. Therefore, it was submitted that the aforesaid reason for reopening an assessment has gone unchallenged before the Assessing Officer. In the circumstances, the Assessing Officer was correct in rejecting the petitioners objection for reopening the assessment for assessment year 2007-08.7) We have considered the rival contentions. The notice dated 28 September 2012 seeks to reopen assessment beyond the period of 4 years i.e. beyond the period of four years from assessment year 2007-08. The case of the revenue argued before us is limited to its ground that the assessee has not reported a loan of Rs.1,19,42,900/- received from its directors and their family members in the financial statement filed along with return of income. Thus, there was a failure to truly and fully disclose all material facts necessary for assessment. The petitioners contention before us is that the alleged loan transaction has in fact been reflected in their financial statement as margin money which they had received from its directors and their family members while carrying on its business of share and stock broker. This margin money was reflected in Schedule 8 to the balance sheet for the year ending 31 March 2007. However, we find that this submission is being made before us for the first time as in their objections to the reasons for reopening filed on 5 November 2012 the petitioner did not state that the loan amount mentioned in the reasons for reopening is nothing but margin money which stands reflected as margin deposits in Schedule 8 of the balance sheet. The response of the petitioner in its objection was that they are not obliged to disclose in their return of income and financial statement the transaction of its directors and their family members. Just as the revenue cannot improve upon its case for reopening before the Court and but must stand or fall by the reasons recorded for reopening the assessment, the same test would be applicable in case of an assessee i.e. it must stand or fall by its objection to the grounds for reopening of assessment. It is not open to the assessee to urge fresh objections before the Court which the Assessing Officer had no occasion to deal with, unless of course the notice to reopen is ex-facie without jurisdiction not requiring consideration of any argument such as beyond limitation. In view of the above, we find substance in the submissions on behalf of the revenue that the Assessing Officer had tangible material to come to prima facie view that income chargeable to tax has escaped assessment.8) It is very likely that during the course of reassessment proceeding the petitioner would be able to satisfy the Assessing Officer that the amount of Rs.1,19,42,900/- received in cheque by the petitioner from its directors and family members is nothing but margin money and stands reflected in schedule 8 to the balance sheet. However, this would be a subject matter of reassessment proceeding. At this stage, we are only to examine whether or not there was a reasonable belief on the part of the Assessing officer to come to a prima facie view that the income chargeable to tax has escaped assessment. We find that no sufficient explanation was offered by the petitioner in its objection dated 5 November 2012 to the reasons for reopening of assessment for assessment year 2007-08. | 0[ds]The notice dated 28 September 2012 seeks to reopen assessment beyond the period of 4 years i.e. beyond the period of four years from assessment yearThe case of the revenue argued before us is limited to its ground that the assessee has not reported a loan of Rs.1,19,42,900/received from its directors and their family members in the financial statement filed along with return of income. Thus, there was a failure to truly and fully disclose all material facts necessary for assessment. The petitioners contention before us is that the alleged loan transaction has in fact been reflected in their financial statement as margin money which they had received from its directors and their family members while carrying on its business of share and stock broker. This margin money was reflected in Schedule 8 to the balance sheet for the year ending 31 March 2007. However, we find that this submission is being made before us for the first time as in their objections to the reasons for reopening filed on 5 November 2012 the petitioner did not state that the loan amount mentioned in the reasons for reopening is nothing but margin money which stands reflected as margin deposits in Schedule 8 of the balance sheet. The response of the petitioner in its objection was that they are not obliged to disclose in their return of income and financial statement the transaction of its directors and their family members. Just as the revenue cannot improve upon its case for reopening before the Court and but must stand or fall by the reasons recorded for reopening the assessment, the same test would be applicable in case of an assessee i.e. it must stand or fall by its objection to the grounds for reopening of assessment. It is not open to the assessee to urge fresh objections before the Court which the Assessing Officer had no occasion to deal with, unless of course the notice to reopen iswithout jurisdiction not requiring consideration of any argument such as beyond limitation. In view of the above, we find substance in the submissions on behalf of the revenue that the Assessing Officer had tangible material to come to prima facie view that income chargeable to tax has escaped assessment.8) It is very likely that during the course of reassessment proceeding the petitioner would be able to satisfy the Assessing Officer that the amount of Rs.1,19,42,900/received in cheque by the petitioner from its directors and family members is nothing but margin money and stands reflected in schedule 8 to the balance sheet. However, this would be a subject matter of reassessment proceeding. At this stage, we are only to examine whether or not there was a reasonable belief on the part of the Assessing officer to come to a prima facie view that the income chargeable to tax has escaped assessment. We find that no sufficient explanation was offered by the petitioner in its objection dated 5 November 2012 to the reasons for reopening of assessment for assessment year | 0 | 2,334 | 529 | ### Instruction:
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disclosure as it evident from the following:-(i) The response of Not applicable in column 24(a) and (b) of Form 3CD was correct disclosure. The column 24(a) and (b) of Form 3CD in the context of taking of loans/deposits or repayment of loan/deposits exceeding the specified limits provided under Section 269 SS and 269T of the Act for being visted with penalty. The columns were not applicable to the petitioners case;(ii) The margin money received by it from its Directors and their family members have in fact been disclosed in its financial statement as reflected in Schedule 8 appended to the balance sheet for the year ending 31 March 2007; and (iii) So far as the loan of Rs.1,19,42,900/- received by the petitioners from its directors and their family members is concerned it is submitted that the same was not a loan but the amounts received by way of margin money. These amounts as margin money were reflected in Schedule 8 appended to the balance sheet of the year ending 31 March 2007.In view of the above, it was submitted that the reasons for reopening do not disclose a reasonable belief that income chargeable to tax has escaped assessment. In any event, there has been no failure on the part of the petitioner to make a full and true disclosure for the purpose of assessment.5) As against the above, Shri. Suresh Kumar, learned Counsel for the revenue seeks to sustain the notice dated 28 September 2012 issued under Section 148 by placing reliance on one of the reasons for reopening the assessment i.e. on verification of the accounts the petitioners directors and their family members it was revealed that an amount of Rs.1,19,42,900/- was received by the petitioner and the same has not been disclosed by the petitioner in its financial statement. Thus, there has been a failure on the part of the petitioner to truly and fully disclose all facts necessary for assessment. It is this further information which would have to be examined during the reassessment proceeding.6) Mr. Suresh Kumar invites our attention to the petitioners objections dated 5 November 2012 to the grounds for reopening of the assessment. The petitioner in its objection has not categorically stated that the amount of Rs.1,19, 42,900/- which the Assessing Officer calls an undisclosed loan was in fact margin money and reflected as part of Schedule 8 to the balance sheet. It is being urged for the first time in the petition. The response in the petitioners objections to the above ground is that it is not required to furnish details of the accounts of its directors and their family members in its return of income. Therefore, it was submitted that the aforesaid reason for reopening an assessment has gone unchallenged before the Assessing Officer. In the circumstances, the Assessing Officer was correct in rejecting the petitioners objection for reopening the assessment for assessment year 2007-08.7) We have considered the rival contentions. The notice dated 28 September 2012 seeks to reopen assessment beyond the period of 4 years i.e. beyond the period of four years from assessment year 2007-08. The case of the revenue argued before us is limited to its ground that the assessee has not reported a loan of Rs.1,19,42,900/- received from its directors and their family members in the financial statement filed along with return of income. Thus, there was a failure to truly and fully disclose all material facts necessary for assessment. The petitioners contention before us is that the alleged loan transaction has in fact been reflected in their financial statement as margin money which they had received from its directors and their family members while carrying on its business of share and stock broker. This margin money was reflected in Schedule 8 to the balance sheet for the year ending 31 March 2007. However, we find that this submission is being made before us for the first time as in their objections to the reasons for reopening filed on 5 November 2012 the petitioner did not state that the loan amount mentioned in the reasons for reopening is nothing but margin money which stands reflected as margin deposits in Schedule 8 of the balance sheet. The response of the petitioner in its objection was that they are not obliged to disclose in their return of income and financial statement the transaction of its directors and their family members. Just as the revenue cannot improve upon its case for reopening before the Court and but must stand or fall by the reasons recorded for reopening the assessment, the same test would be applicable in case of an assessee i.e. it must stand or fall by its objection to the grounds for reopening of assessment. It is not open to the assessee to urge fresh objections before the Court which the Assessing Officer had no occasion to deal with, unless of course the notice to reopen is ex-facie without jurisdiction not requiring consideration of any argument such as beyond limitation. In view of the above, we find substance in the submissions on behalf of the revenue that the Assessing Officer had tangible material to come to prima facie view that income chargeable to tax has escaped assessment.8) It is very likely that during the course of reassessment proceeding the petitioner would be able to satisfy the Assessing Officer that the amount of Rs.1,19,42,900/- received in cheque by the petitioner from its directors and family members is nothing but margin money and stands reflected in schedule 8 to the balance sheet. However, this would be a subject matter of reassessment proceeding. At this stage, we are only to examine whether or not there was a reasonable belief on the part of the Assessing officer to come to a prima facie view that the income chargeable to tax has escaped assessment. We find that no sufficient explanation was offered by the petitioner in its objection dated 5 November 2012 to the reasons for reopening of assessment for assessment year 2007-08.
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The notice dated 28 September 2012 seeks to reopen assessment beyond the period of 4 years i.e. beyond the period of four years from assessment yearThe case of the revenue argued before us is limited to its ground that the assessee has not reported a loan of Rs.1,19,42,900/received from its directors and their family members in the financial statement filed along with return of income. Thus, there was a failure to truly and fully disclose all material facts necessary for assessment. The petitioners contention before us is that the alleged loan transaction has in fact been reflected in their financial statement as margin money which they had received from its directors and their family members while carrying on its business of share and stock broker. This margin money was reflected in Schedule 8 to the balance sheet for the year ending 31 March 2007. However, we find that this submission is being made before us for the first time as in their objections to the reasons for reopening filed on 5 November 2012 the petitioner did not state that the loan amount mentioned in the reasons for reopening is nothing but margin money which stands reflected as margin deposits in Schedule 8 of the balance sheet. The response of the petitioner in its objection was that they are not obliged to disclose in their return of income and financial statement the transaction of its directors and their family members. Just as the revenue cannot improve upon its case for reopening before the Court and but must stand or fall by the reasons recorded for reopening the assessment, the same test would be applicable in case of an assessee i.e. it must stand or fall by its objection to the grounds for reopening of assessment. It is not open to the assessee to urge fresh objections before the Court which the Assessing Officer had no occasion to deal with, unless of course the notice to reopen iswithout jurisdiction not requiring consideration of any argument such as beyond limitation. In view of the above, we find substance in the submissions on behalf of the revenue that the Assessing Officer had tangible material to come to prima facie view that income chargeable to tax has escaped assessment.8) It is very likely that during the course of reassessment proceeding the petitioner would be able to satisfy the Assessing Officer that the amount of Rs.1,19,42,900/received in cheque by the petitioner from its directors and family members is nothing but margin money and stands reflected in schedule 8 to the balance sheet. However, this would be a subject matter of reassessment proceeding. At this stage, we are only to examine whether or not there was a reasonable belief on the part of the Assessing officer to come to a prima facie view that the income chargeable to tax has escaped assessment. We find that no sufficient explanation was offered by the petitioner in its objection dated 5 November 2012 to the reasons for reopening of assessment for assessment year
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M/s. Orissa Cement Limited Vs. Habibullah | Gajendragadkar, J.1. This appeal by special leave arises out of an application made by M/s. Orissa Cement Ltd., Rajgangpur, Orissa (hereafter called the appellant) under S. 33 of the Industrial Disputes not to the Industrial Tribunal for permission to dismiss the respondent Habibullah who was its employee. The tribunal took the view that the application was not justified and so it directed the appellant to reinstate the respondent. The appellant then preferred an appeal against the said order to the Labour Appellate Tribunal; but the appellate tribunal confirmed the order passed by the tribunal and dismissed the appeal. It is against this order that the present appeal b special leave has been filed.2. The respondent who was a watchman in the appellants service had gone to the appellants hospital for treatment on 1-4-1954. The doctor had prepared an injection to be given to the respondent to treat him for his malarial fever and the respondent was lying on the cot waiting for the injection. It appears that Madan Mohan, another employee of the appellant, who was present in the hospital took the syringe from the dispenser and gave the injection to the respondent. Proceedings were taken against Madan Mohan for his misconduct; and when the matter had gone before the industrial tribunal, the respondent was cited as a witness by the said Madan Mohan, and he made a statement trying to clear Madan Mohan of the charge levelled against him. The tribunal disbelieved the respondent and grantad the appellants application for dismissing Madan Mohan. In disbelieving the respondent the tribunal has made strong criticism against the evidence given by the respondent. It is principally in respect of this evidence that the present proceedings against the respondent were taken by the appellant.3. The appellants case was that the respondent had intentionally given false evidence in the proceedings against Madan Mohan and had made false complaint to the police. Evidence shows that the respondent had made a statement before the appellants officers that he had been injected by Madan Mohan; but he went back upon his statement when he gave evidence before the tribunal. It appears that the respondent had filed a complaint at the police station alleging that the statement made by him before the appellants officers had been obtained from him by undue influence and pressure. The appellants case was that the respondent deserved to be dismissed both because he gave false evidence in the case against Madan Mohan and because he filed a false complaint against the appellant. Both these grounds did not appear to the tribunals below to justify the dismissal of the respondent, and the appellants argument is that the tribunals were in error in not allowing it to dismiss the respondent. We do not think that we would be justified in interfering with the orders passed by the tribunals below in this case.4. In regard to the evidence given by the respondent in the proceedings against Madan Mohan, the tribunal that tried the case against Madan Mohan was the very tribunal before which the present proceedings were also instituted; and it has observed that though the respondent had been disbelieved in the earlier proceedings that would not amount to misconduct which would justify his dismissal.In our opinion it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved that itself without anything more would constitute misconduct as alleged by the appellant.Then in regard to the complaint made by the respondent against the appellant before the police, the Labour Appellate Tribunal has observed that no evidence was led to show that the said complaint was untrue. It is unnecessary to say that it would not be proper for employees to make such serious allegations against their employers; and if it appears that the complaints made were known to be false to the employees that would be a serious matter; but having regard to the circumstances of this case we do not think that the appellant can successfully challenge the validity of the order passed by the Labour Appellate Tribunal on this ground alone. | 0[ds]Both these grounds did not appear to the tribunals below to justify the dismissal of the respondent, and the appellants argument is that the tribunals were in error in not allowing it to dismiss the respondent. We do not think that we would be justified in interfering with the orders passed by the tribunals below in thisour opinion it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved that itself without anything more would constitute misconduct as alleged by the appellant.Then in regard to the complaint made by the respondent against the appellant before the police, the Labour Appellate Tribunal has observed that no evidence was led to show that the said complaint was untrue. It is unnecessary to say that it would not be proper for employees to make such serious allegations against their employers; and if it appears that the complaints made were known to be false to the employees that would be a serious matter; but having regard to the circumstances of this case we do not think that the appellant can successfully challenge the validity of the order passed by the Labour Appellate Tribunal on this ground alone. | 0 | 727 | 216 | ### Instruction:
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Gajendragadkar, J.1. This appeal by special leave arises out of an application made by M/s. Orissa Cement Ltd., Rajgangpur, Orissa (hereafter called the appellant) under S. 33 of the Industrial Disputes not to the Industrial Tribunal for permission to dismiss the respondent Habibullah who was its employee. The tribunal took the view that the application was not justified and so it directed the appellant to reinstate the respondent. The appellant then preferred an appeal against the said order to the Labour Appellate Tribunal; but the appellate tribunal confirmed the order passed by the tribunal and dismissed the appeal. It is against this order that the present appeal b special leave has been filed.2. The respondent who was a watchman in the appellants service had gone to the appellants hospital for treatment on 1-4-1954. The doctor had prepared an injection to be given to the respondent to treat him for his malarial fever and the respondent was lying on the cot waiting for the injection. It appears that Madan Mohan, another employee of the appellant, who was present in the hospital took the syringe from the dispenser and gave the injection to the respondent. Proceedings were taken against Madan Mohan for his misconduct; and when the matter had gone before the industrial tribunal, the respondent was cited as a witness by the said Madan Mohan, and he made a statement trying to clear Madan Mohan of the charge levelled against him. The tribunal disbelieved the respondent and grantad the appellants application for dismissing Madan Mohan. In disbelieving the respondent the tribunal has made strong criticism against the evidence given by the respondent. It is principally in respect of this evidence that the present proceedings against the respondent were taken by the appellant.3. The appellants case was that the respondent had intentionally given false evidence in the proceedings against Madan Mohan and had made false complaint to the police. Evidence shows that the respondent had made a statement before the appellants officers that he had been injected by Madan Mohan; but he went back upon his statement when he gave evidence before the tribunal. It appears that the respondent had filed a complaint at the police station alleging that the statement made by him before the appellants officers had been obtained from him by undue influence and pressure. The appellants case was that the respondent deserved to be dismissed both because he gave false evidence in the case against Madan Mohan and because he filed a false complaint against the appellant. Both these grounds did not appear to the tribunals below to justify the dismissal of the respondent, and the appellants argument is that the tribunals were in error in not allowing it to dismiss the respondent. We do not think that we would be justified in interfering with the orders passed by the tribunals below in this case.4. In regard to the evidence given by the respondent in the proceedings against Madan Mohan, the tribunal that tried the case against Madan Mohan was the very tribunal before which the present proceedings were also instituted; and it has observed that though the respondent had been disbelieved in the earlier proceedings that would not amount to misconduct which would justify his dismissal.In our opinion it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved that itself without anything more would constitute misconduct as alleged by the appellant.Then in regard to the complaint made by the respondent against the appellant before the police, the Labour Appellate Tribunal has observed that no evidence was led to show that the said complaint was untrue. It is unnecessary to say that it would not be proper for employees to make such serious allegations against their employers; and if it appears that the complaints made were known to be false to the employees that would be a serious matter; but having regard to the circumstances of this case we do not think that the appellant can successfully challenge the validity of the order passed by the Labour Appellate Tribunal on this ground alone.
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Both these grounds did not appear to the tribunals below to justify the dismissal of the respondent, and the appellants argument is that the tribunals were in error in not allowing it to dismiss the respondent. We do not think that we would be justified in interfering with the orders passed by the tribunals below in thisour opinion it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved that itself without anything more would constitute misconduct as alleged by the appellant.Then in regard to the complaint made by the respondent against the appellant before the police, the Labour Appellate Tribunal has observed that no evidence was led to show that the said complaint was untrue. It is unnecessary to say that it would not be proper for employees to make such serious allegations against their employers; and if it appears that the complaints made were known to be false to the employees that would be a serious matter; but having regard to the circumstances of this case we do not think that the appellant can successfully challenge the validity of the order passed by the Labour Appellate Tribunal on this ground alone.
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Dr. Saroj Kumar Das Vs. Arjun Prasad Jogani | also clear that on the basis of evidence which was recorded earlier the 2 courts of facts came to the conclusion that plaintiff has established his genuine requirement. 9. Before these facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice after taking retirement from his service in Ghana. It was also stated that he intended to start private practice as a medical practitioner in Calcutta. It is also clear that before going to Ghana the appellant was living in the said premises and was practising. It had also come in evidence that his wife was also serving in some nearby institution. On this basis his genuine requirement was held to have been proved and the learned Judge of the High Court also accepted this concurrent finding of fact. The only consideration which weighed with the High Court was the acquisition of this flat on the 13th floor in South Calcutta. 10. It could not be disputed that if the medical practitioner is an old resident of a particular locality and had practised in that locality it will not be easy for him at a stage in life after retirement to start afresh practice in some new area and that too on 13th floor in a modern flat. What has weighed with the learned Judge of the High Court was the statement made by the appellant that he intended to start a laboratory after retirement in the flat which he acquired and the other fact which weighed was the agreement which stated that the flat was required for residence. Apparently not much could be drawn from these facts as starting a laboratory admittedly is much different from starting private practice as the medical practitioner and signing an agreement which talks of residence is nothing but a mere formality if he at all intended to acquire a flat.It is clear that there is nothing else in the evidence on the basis of which it could be said that this flat is reasonably suitable. Learned counsel for the respondent contended that the appellant said nothing else except the statement that this flat is not suitable for his purpose but it is very significant that this statement made by the appellant when he was examined additionally after the pleadings were amended. This statement is no t challenged by way of cross-examination at all and it clearly states that for the purpose for which the appellant needs the premises and he sought eviction this flat is not at all suitable for that purpose which also is apparent from the situation and the circumstances discussed above. 11. Both the learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 1978. On the one hand the counsel for the appellant contended that the Appellate Court having affirmed the decree of eviction the appellant knew that now there is no problem and this additional flat which he acquired out of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and therefore he let it out so that he may earn Something out of it whereas learned counsel for the respondent contended that all others got the possession of the flat in 1977 but this appellant waited till he secured a decree of eviction affirmed by the Appellate Court and it is only then that he took possession of the flat so that a reasonable explanation is possible for having let it out because the decree for eviction was already passed. The circumstances discussed above and the suitability and the requirement of the appellant the age and nature of practice possible for a retired doctor with only an MBBS degree establish that the premises in question are suitable and so far as this is concerned there is no dispute but in the context of the facts and circumstances discussed above it could not beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de out from the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.It is therefore clear that the learned Judge of the High Court was not justified in second appeal under Sec. 100 to interfere with the finding of fact unless there were facts established to hold that this alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonably suitable. 12. Learned Judge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant landlord. The judgment of the High Court can not be maintained. The appeal is therefore allowed. The judgment of the High Court is set aside and the decree of eviction passed by the two courts below is maintained. In the circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n undertaking in the usual form and also paying rents and mesns profits upto date within four weeks. If respondent fails to deliver possession on or before 31.3.88 the appellant shall be entitled to execute the decree for eviction. In the circumstances of the case no order as to costs. 13. | 1[ds]So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then more availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and to this counsel for both the parties also agreed but the main contention was that on the facts appearing in evidence in this case whether the inference could be drawn that the flat on the 13th floor in South Calcutta was reasonably suitable to satisfy the need of the appellant landlord. As regards evidence it is no doubt true that after these facts were pleaded in the statement of the appellant the only statement in regard to suitability is that "t he flat is not suitable for my purpose". It is not disputed that this is a flat on the 13th floor in South Calcutta and learned counsel for parties conceded that from C.I.T. Road where premises in question are situated this place where the flat is situated in South Calcutta will be a distant place.Although learned counsel for the respondent emphasised that the above quoted statement is the only statement made by the appellant in additional evidence. It is true that this is the only statement when he was examined afresh after these facts were brought in the pleading by way of additional evidence. But it could not be doubted that whatever was in evidence earlier could not be brushed aside and it is also clear that on the basis of evidence which was recorded earlier the 2 courts of facts came to the conclusion that plaintiff has established his genuinethese facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice after taking retirement from his service in Ghana. It was also stated that he intended to start private practice as a medical practitioner in Calcutta. It is also clear that before going to Ghana the appellant was living in the said premises and was practising. It had also come in evidence that his wife was also serving in some nearby institution. On this basis his genuine requirement was held to have been proved and the learned Judge of the High Court also accepted this concurrent finding ofthe learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 1978. On the one hand the counsel for the appellant contended that the Appellate Court having affirmed the decree of eviction the appellant knew that now there is no problem and this additional flat which he acquired out of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and therefore he let it out so that he may earn Something out of it whereas learned counsel for the respondent contended that all others got the possession of the flat in 1977 but this appellant waited till he secured a decree of eviction affirmed by the Appellate Court and it is only then that he took possession of the flat so that a reasonable explanation is possible for having let it out because the decree for eviction was already passed. The circumstances discussed above and the suitability and the requirement of the appellant the age and nature of practice possible for a retired doctor with only an MBBS degree establish that the premises in question are suitable and so far as this is concerned there is no dispute but in the context of the facts and circumstances discussed above it could not beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de out from the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.It is therefore clear that the learned Judge of the High Court was not justified in second appeal under Sec. 100 to interfere with the finding of fact unless there were facts established to hold that this alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonablyJudge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant landlord. The judgment of the High Court can not be maintained. The appeal is therefore allowed. The judgment of the High Court is set aside and the decree of eviction passed by the two courts below is maintained. In the circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n undertaking in the usual form and also paying rents and mesns profits upto date within four weeks. If respondent fails to deliver possession on or before 31.3.88 the appellant shall be entitled to execute the decree for eviction. In the circumstances of the case no order as to costs. | 1 | 2,789 | 977 | ### 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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also clear that on the basis of evidence which was recorded earlier the 2 courts of facts came to the conclusion that plaintiff has established his genuine requirement. 9. Before these facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice after taking retirement from his service in Ghana. It was also stated that he intended to start private practice as a medical practitioner in Calcutta. It is also clear that before going to Ghana the appellant was living in the said premises and was practising. It had also come in evidence that his wife was also serving in some nearby institution. On this basis his genuine requirement was held to have been proved and the learned Judge of the High Court also accepted this concurrent finding of fact. The only consideration which weighed with the High Court was the acquisition of this flat on the 13th floor in South Calcutta. 10. It could not be disputed that if the medical practitioner is an old resident of a particular locality and had practised in that locality it will not be easy for him at a stage in life after retirement to start afresh practice in some new area and that too on 13th floor in a modern flat. What has weighed with the learned Judge of the High Court was the statement made by the appellant that he intended to start a laboratory after retirement in the flat which he acquired and the other fact which weighed was the agreement which stated that the flat was required for residence. Apparently not much could be drawn from these facts as starting a laboratory admittedly is much different from starting private practice as the medical practitioner and signing an agreement which talks of residence is nothing but a mere formality if he at all intended to acquire a flat.It is clear that there is nothing else in the evidence on the basis of which it could be said that this flat is reasonably suitable. Learned counsel for the respondent contended that the appellant said nothing else except the statement that this flat is not suitable for his purpose but it is very significant that this statement made by the appellant when he was examined additionally after the pleadings were amended. This statement is no t challenged by way of cross-examination at all and it clearly states that for the purpose for which the appellant needs the premises and he sought eviction this flat is not at all suitable for that purpose which also is apparent from the situation and the circumstances discussed above. 11. Both the learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 1978. On the one hand the counsel for the appellant contended that the Appellate Court having affirmed the decree of eviction the appellant knew that now there is no problem and this additional flat which he acquired out of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and therefore he let it out so that he may earn Something out of it whereas learned counsel for the respondent contended that all others got the possession of the flat in 1977 but this appellant waited till he secured a decree of eviction affirmed by the Appellate Court and it is only then that he took possession of the flat so that a reasonable explanation is possible for having let it out because the decree for eviction was already passed. The circumstances discussed above and the suitability and the requirement of the appellant the age and nature of practice possible for a retired doctor with only an MBBS degree establish that the premises in question are suitable and so far as this is concerned there is no dispute but in the context of the facts and circumstances discussed above it could not beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de out from the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.It is therefore clear that the learned Judge of the High Court was not justified in second appeal under Sec. 100 to interfere with the finding of fact unless there were facts established to hold that this alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonably suitable. 12. Learned Judge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant landlord. The judgment of the High Court can not be maintained. The appeal is therefore allowed. The judgment of the High Court is set aside and the decree of eviction passed by the two courts below is maintained. In the circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n undertaking in the usual form and also paying rents and mesns profits upto date within four weeks. If respondent fails to deliver possession on or before 31.3.88 the appellant shall be entitled to execute the decree for eviction. In the circumstances of the case no order as to costs. 13.
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So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then more availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and to this counsel for both the parties also agreed but the main contention was that on the facts appearing in evidence in this case whether the inference could be drawn that the flat on the 13th floor in South Calcutta was reasonably suitable to satisfy the need of the appellant landlord. As regards evidence it is no doubt true that after these facts were pleaded in the statement of the appellant the only statement in regard to suitability is that "t he flat is not suitable for my purpose". It is not disputed that this is a flat on the 13th floor in South Calcutta and learned counsel for parties conceded that from C.I.T. Road where premises in question are situated this place where the flat is situated in South Calcutta will be a distant place.Although learned counsel for the respondent emphasised that the above quoted statement is the only statement made by the appellant in additional evidence. It is true that this is the only statement when he was examined afresh after these facts were brought in the pleading by way of additional evidence. But it could not be doubted that whatever was in evidence earlier could not be brushed aside and it is also clear that on the basis of evidence which was recorded earlier the 2 courts of facts came to the conclusion that plaintiff has established his genuinethese facts were introduced by amendment it was clearly stated that the appellant wanted to start his practice after taking retirement from his service in Ghana. It was also stated that he intended to start private practice as a medical practitioner in Calcutta. It is also clear that before going to Ghana the appellant was living in the said premises and was practising. It had also come in evidence that his wife was also serving in some nearby institution. On this basis his genuine requirement was held to have been proved and the learned Judge of the High Court also accepted this concurrent finding ofthe learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acquisition of the flat as it is apparent that the judgment of the Lower Appellate Court was de livered on 29th September, 1978 and the possession of the flat was given on 5th October, 1978. On the one hand the counsel for the appellant contended that the Appellate Court having affirmed the decree of eviction the appellant knew that now there is no problem and this additional flat which he acquired out of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and therefore he let it out so that he may earn Something out of it whereas learned counsel for the respondent contended that all others got the possession of the flat in 1977 but this appellant waited till he secured a decree of eviction affirmed by the Appellate Court and it is only then that he took possession of the flat so that a reasonable explanation is possible for having let it out because the decree for eviction was already passed. The circumstances discussed above and the suitability and the requirement of the appellant the age and nature of practice possible for a retired doctor with only an MBBS degree establish that the premises in question are suitable and so far as this is concerned there is no dispute but in the context of the facts and circumstances discussed above it could not beheld that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord and in the context of these facts and circumstances not much could be ma de out from the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.It is therefore clear that the learned Judge of the High Court was not justified in second appeal under Sec. 100 to interfere with the finding of fact unless there were facts established to hold that this alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonablyJudge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant landlord. The judgment of the High Court can not be maintained. The appeal is therefore allowed. The judgment of the High Court is set aside and the decree of eviction passed by the two courts below is maintained. In the circumstances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing a n undertaking in the usual form and also paying rents and mesns profits upto date within four weeks. If respondent fails to deliver possession on or before 31.3.88 the appellant shall be entitled to execute the decree for eviction. In the circumstances of the case no order as to costs.
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Pawan Kumar Vs. Rochiram | the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad the transferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it. 23. In this context reference to Sections 91 and 92 of the Evidence Act will be useful. As per the former, in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such matter except the document itself. Section 92 forbids admission of any evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of such document. One of the exceptions to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence. 24. In this case, Ext. P.11 is the document by which transfer of ownership from Narain Prasad was effected. When any party proposes to show something which is at variance with the terms of Ext. P.11 the burden of proof is on him. When respondent asserted that the real transaction is not what is apparently mentioned in Ext. P.11 the burden is on the respondent to establish the transaction which he asserts to be the real one. 25. We do understand that respondent made a bid to discharge his burden by examining Pyarelal (father of the appellant) and Narain Prasad (the executant of Ext. P.11) as witnesses for the defendant. But it was a risky course of action which he undertook and the risk proved to be costly for him as both witnesses stood by the apparent terms of Ext. P.11 regarding consideration. In other words, both witnesses of the respondent stuck to the version that consideration for the sale was paid by the appellant. 26. It is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying the property. 27. Section 3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective only, (vide R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995(2) SCC 630, As the Benami Act was passed on 5.9.1988 it would apply to Ext. P.11 which was executed subsequently. A contention was bolstered up in the High Court on behalf of the tenant that since the sale consideration was provided by Pyarelal the sale deed would be a benami transaction. 28. Section 2(a) of the Benami Act defines benami transaction as "any transaction in which property is transferred to one person for a consideration paid or provided by another person". The word "provided" in the said clause cannot be construed in relation to the source or sources from which the real transferee made up funds for buying the sale consideration. The words "paid or provided" are disjunctively employed in the clause and each has to be tagged with the word "consideration". The correct interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word "provided" has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money. Could it be said that since the money was provided by the bank it was a benami transaction ? 29. We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.31. Shri S.S. Khanduja, learned counsel for the respondent lastly pleaded that if ultimately the appellant is found to be the transferee under the Ext. P.11 sale deed the case may be remitted to the High Court for considering the question whether appellants claim for eviction on the ground that he needs the building for his own use is bona fide. Shri G.L. Sanghi, learned Senior Counsel pointed out that there is concurrent finding by two courts on that aspect. We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court. | 1[ds]14. Though the word "dismissed" has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The court found against the plea of the defendant that plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiffs claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant has been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully.15. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibit the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on the issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contestedclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad theIt is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying thecorrect interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word "provided" has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money.We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.19. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OSthat appellant was the real owner of the building as per Ext. P.11 sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it.20. We, therefore, agree with the plea of the appellant that there is bar of res judicata inon the issue regarding appellants title to the building.All the above three premise adverted to be the High Court are unsupportable. Theclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad thetransferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it. | 1 | 3,773 | 1,216 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad the transferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it. 23. In this context reference to Sections 91 and 92 of the Evidence Act will be useful. As per the former, in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such matter except the document itself. Section 92 forbids admission of any evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of such document. One of the exceptions to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence. 24. In this case, Ext. P.11 is the document by which transfer of ownership from Narain Prasad was effected. When any party proposes to show something which is at variance with the terms of Ext. P.11 the burden of proof is on him. When respondent asserted that the real transaction is not what is apparently mentioned in Ext. P.11 the burden is on the respondent to establish the transaction which he asserts to be the real one. 25. We do understand that respondent made a bid to discharge his burden by examining Pyarelal (father of the appellant) and Narain Prasad (the executant of Ext. P.11) as witnesses for the defendant. But it was a risky course of action which he undertook and the risk proved to be costly for him as both witnesses stood by the apparent terms of Ext. P.11 regarding consideration. In other words, both witnesses of the respondent stuck to the version that consideration for the sale was paid by the appellant. 26. It is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying the property. 27. Section 3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective only, (vide R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995(2) SCC 630, As the Benami Act was passed on 5.9.1988 it would apply to Ext. P.11 which was executed subsequently. A contention was bolstered up in the High Court on behalf of the tenant that since the sale consideration was provided by Pyarelal the sale deed would be a benami transaction. 28. Section 2(a) of the Benami Act defines benami transaction as "any transaction in which property is transferred to one person for a consideration paid or provided by another person". The word "provided" in the said clause cannot be construed in relation to the source or sources from which the real transferee made up funds for buying the sale consideration. The words "paid or provided" are disjunctively employed in the clause and each has to be tagged with the word "consideration". The correct interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word "provided" has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money. Could it be said that since the money was provided by the bank it was a benami transaction ? 29. We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.31. Shri S.S. Khanduja, learned counsel for the respondent lastly pleaded that if ultimately the appellant is found to be the transferee under the Ext. P.11 sale deed the case may be remitted to the High Court for considering the question whether appellants claim for eviction on the ground that he needs the building for his own use is bona fide. Shri G.L. Sanghi, learned Senior Counsel pointed out that there is concurrent finding by two courts on that aspect. We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.
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have been redressed fully.15. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibit the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on the issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contestedclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad theIt is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying thecorrect interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word "provided" has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money.We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.19. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OSthat appellant was the real owner of the building as per Ext. P.11 sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it.20. We, therefore, agree with the plea of the appellant that there is bar of res judicata inon the issue regarding appellants title to the building.All the above three premise adverted to be the High Court are unsupportable. Theclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad thetransferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it.
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Tata Engineering & Locomotive Co. Limited Vs. The Assistant Commissioner Of Commercialtaxes & Another | was not completely disassociated from the allocation made to the dealers. Consequently it would (?) not be said that the movement of the vehicles from the works at Jamshedpur was completely unrelated to contract of sale".It was recognised that in some cases vehicles had been delivered to some dealers in advance against the allocation made for the following months. The appellant further showed and this was accepted that 15 vehicles from the Delhi stockyard were transferred to Karnal stockyard. After finding that the allocation letters together with their confirmation constituted transactions of sale the Assistant Commissioner referred to the dealership agreement and stated that on placing of the demand by the dealer a complete contract came into existence. He proceeded to regard the statements which were required to be furnished to the dealers in accordance with the letter dated June 14, 1963 addressed by the appellant to them as firm orders within the meaning of the relevant clause in the dealership agreement. The final conclusion of the Assistant commissioner was that as contemplated by clause 11 (b) of the dealership agreement every one of the dealers placed his demand or orders for supply which amounted to a contract for the sale of the vehicles demanded and clause 12 of the dealership agreement under which allocations were made by the appellant to the dealers amounted to fulfillment of orders. The appellant had throughout maintained that firm orders were no longer placed with it by the dealers after 1958. It has not been found or shown that any such orders were in existence relating to the transactions in dispute. Thus on the question that transactions of sale took place the decision of the Assistant Commissioner rested mainly on the allocation letters and the statements furnished by the dealers as required by the circular of June 14, 1963.10. It is somewhat unfortunate that the High Court fell into the same error as the Assistant Commissioner as it accepted his findings on the ground that they were on questions of fact and could not be re-examined by the High Court. It was said that the terms and covenants of the contract made it clear that since the vehicles were despatched in pursuance of orders irrespective of appropriation or specific vehicles being sent to specific dealers the dispatch and supply to the dealers must of necessity be regarded as integral part of a single transaction. It is difficult to see what contracts the High Court had in mind because none have been shown to us even by the learned Advocate-General for the State. He also relied largely on the findings of the Assistant Commissioner and urged that they were not open to re-examination.11. The explanation of the procedure followed by the appellant which prima facie seems to be business-like and plausible together with the proved absence of any firm orders lends support to the argument pressed on its behalf that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of Section 2 (g) of the Act.The Assistant Commissioner himself found that sometimes the vehicles were sent from the works at Jamshedpur even before an allocation letter had been issued. It would appear from the material placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stockyards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stockyards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyards to another.Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. It is not possible to comprehend how in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale. As regards the so-called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders had been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in Exht. I (the dealership agreement) according to which it was open to the appellate to supply or not to supply the dealer with any vehicle in response to such order. What was, therefore, relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.12. Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature andthe appellants representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly a wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act. | 1[ds]10. It is somewhat unfortunate that the High Court fell into the same error as the Assistant Commissioner as it accepted his findings on the ground that they were on questions of fact and could not be re-examined by the High Court. It was said that the terms and covenants of the contract made it clear that since the vehicles were despatched in pursuance of orders irrespective of appropriation or specific vehicles being sent to specific dealers the dispatch and supply to the dealers must of necessity be regarded as integral part of a single transaction. It is difficult to see what contracts the High Court had in mind because none have been shown to us even by the learned Advocate-General for the State. He also relied largely on the findings of the Assistant Commissioner and urged that they were not open to re-examination.11. The explanation of the procedure followed by the appellant which prima facie seems to be business-like and plausible together with the proved absence of any firm orders lends support to the argument pressed on its behalf that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of Section 2 (g) of the Act.The Assistant Commissioner himself found that sometimes the vehicles were sent from the works at Jamshedpur even before an allocation letter had been issued. It would appear from the material placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stockyards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stockyards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyards to another.Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. It is not possible to comprehend how in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale. As regards the so-called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders had been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in Exht. I (the dealership agreement) according to which it was open to the appellate to supply or not to supply the dealer with any vehicle in response to such order. What was, therefore, relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.12. Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature andthe appellants representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly a wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act. | 1 | 3,739 | 727 | ### 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:
was not completely disassociated from the allocation made to the dealers. Consequently it would (?) not be said that the movement of the vehicles from the works at Jamshedpur was completely unrelated to contract of sale".It was recognised that in some cases vehicles had been delivered to some dealers in advance against the allocation made for the following months. The appellant further showed and this was accepted that 15 vehicles from the Delhi stockyard were transferred to Karnal stockyard. After finding that the allocation letters together with their confirmation constituted transactions of sale the Assistant Commissioner referred to the dealership agreement and stated that on placing of the demand by the dealer a complete contract came into existence. He proceeded to regard the statements which were required to be furnished to the dealers in accordance with the letter dated June 14, 1963 addressed by the appellant to them as firm orders within the meaning of the relevant clause in the dealership agreement. The final conclusion of the Assistant commissioner was that as contemplated by clause 11 (b) of the dealership agreement every one of the dealers placed his demand or orders for supply which amounted to a contract for the sale of the vehicles demanded and clause 12 of the dealership agreement under which allocations were made by the appellant to the dealers amounted to fulfillment of orders. The appellant had throughout maintained that firm orders were no longer placed with it by the dealers after 1958. It has not been found or shown that any such orders were in existence relating to the transactions in dispute. Thus on the question that transactions of sale took place the decision of the Assistant Commissioner rested mainly on the allocation letters and the statements furnished by the dealers as required by the circular of June 14, 1963.10. It is somewhat unfortunate that the High Court fell into the same error as the Assistant Commissioner as it accepted his findings on the ground that they were on questions of fact and could not be re-examined by the High Court. It was said that the terms and covenants of the contract made it clear that since the vehicles were despatched in pursuance of orders irrespective of appropriation or specific vehicles being sent to specific dealers the dispatch and supply to the dealers must of necessity be regarded as integral part of a single transaction. It is difficult to see what contracts the High Court had in mind because none have been shown to us even by the learned Advocate-General for the State. He also relied largely on the findings of the Assistant Commissioner and urged that they were not open to re-examination.11. The explanation of the procedure followed by the appellant which prima facie seems to be business-like and plausible together with the proved absence of any firm orders lends support to the argument pressed on its behalf that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of Section 2 (g) of the Act.The Assistant Commissioner himself found that sometimes the vehicles were sent from the works at Jamshedpur even before an allocation letter had been issued. It would appear from the material placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stockyards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stockyards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyards to another.Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. It is not possible to comprehend how in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale. As regards the so-called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders had been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in Exht. I (the dealership agreement) according to which it was open to the appellate to supply or not to supply the dealer with any vehicle in response to such order. What was, therefore, relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.12. Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature andthe appellants representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly a wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act.
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1
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10. It is somewhat unfortunate that the High Court fell into the same error as the Assistant Commissioner as it accepted his findings on the ground that they were on questions of fact and could not be re-examined by the High Court. It was said that the terms and covenants of the contract made it clear that since the vehicles were despatched in pursuance of orders irrespective of appropriation or specific vehicles being sent to specific dealers the dispatch and supply to the dealers must of necessity be regarded as integral part of a single transaction. It is difficult to see what contracts the High Court had in mind because none have been shown to us even by the learned Advocate-General for the State. He also relied largely on the findings of the Assistant Commissioner and urged that they were not open to re-examination.11. The explanation of the procedure followed by the appellant which prima facie seems to be business-like and plausible together with the proved absence of any firm orders lends support to the argument pressed on its behalf that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of Section 2 (g) of the Act.The Assistant Commissioner himself found that sometimes the vehicles were sent from the works at Jamshedpur even before an allocation letter had been issued. It would appear from the material placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stockyards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stockyards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyards to another.Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. It is not possible to comprehend how in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale. As regards the so-called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders had been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in Exht. I (the dealership agreement) according to which it was open to the appellate to supply or not to supply the dealer with any vehicle in response to such order. What was, therefore, relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.12. Another serious infirmity in the order of the Assistant Commissioner was (a matter which even the Advocate-General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a covenant or incident of that contract the Assistant Commissioner based his order on mere generalities. It has been suggested that all the transactions were of similar nature andthe appellants representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly a wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigible to tax under the provisions of the Act.
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Shri Balwan Singh Vs. Shri Lakshmi Narain & Others | entered into the contract of hiring, and the time and place thereof was apparently raised. But all the evidence relating to the hiring and the time and place thereof, was without objection admitted on the record. It is not even suggested that because of the absence of the particulars, the appellant was embarrassed in making his defence, or that he could not lead evidence relevant to the plea of corrupt practice set up by the first respondent. We are therefore unable to hold that any material prejudice was occasioned because of the absence of those particulars in the petition.10. The order of the Tribunal rejecting the application of the first respondent for amplification of the particulars of the corrupt practice alleged in the election petition was, for reasons already set out, erroneous; and in that view the question whether the High Court misdirected itself in holding itself bound, at the hearing of the appeal, by its earlier judgment delivered on the writ petition, does not fall to be determined.11. Counsel for the appellant urged that in any event, the High Court was not justified in disagreeing with the considered judgment of the Tribunal on questions purely of appreciation of evidence. But this appeal has been filed with special leave granted under Art. 136 of the Constitution.It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art. 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.12. This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. We may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before the Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of voters".; that some persons, a majority of whom were women, were sitting on the tractor; that a red flag was hoisted and posters of the socialist party were pasted on the tractor; and that some men and women, who came on the tractor, were placed in the queue of voters. There was also the evidence of Raghuraj Singh, P. W. 38, a voter in the constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station ; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer ; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of the two witnesses, Raghuraj Singh, P. W. 30 and Raghuraj Singh Singh P. W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the appellant at the election. There was no sufficient reason for discarding this testimony. Witness Hanuman Singh, P. W. 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing. | 0[ds]But this appeal has been filed with special leave granted under Art. 136 of the Constitution.It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art. 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.12. This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. We may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before the Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of voters".; that some persons, a majority of whom were women, were sitting on the tractor; that a red flag was hoisted and posters of the socialist party were pasted on the tractor; and that some men and women, who came on the tractor, were placed in the queue of voters. There was also the evidence of Raghuraj Singh, P. W. 38, a voter in the constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station ; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer ; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of the two witnesses, Raghuraj Singh, P. W. 30 and Raghuraj Singh Singh P. W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the appellant at the election. There was no sufficient reason for discarding this testimony. Witness Hanuman Singh, P. W. 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing. | 0 | 4,064 | 875 | ### 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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entered into the contract of hiring, and the time and place thereof was apparently raised. But all the evidence relating to the hiring and the time and place thereof, was without objection admitted on the record. It is not even suggested that because of the absence of the particulars, the appellant was embarrassed in making his defence, or that he could not lead evidence relevant to the plea of corrupt practice set up by the first respondent. We are therefore unable to hold that any material prejudice was occasioned because of the absence of those particulars in the petition.10. The order of the Tribunal rejecting the application of the first respondent for amplification of the particulars of the corrupt practice alleged in the election petition was, for reasons already set out, erroneous; and in that view the question whether the High Court misdirected itself in holding itself bound, at the hearing of the appeal, by its earlier judgment delivered on the writ petition, does not fall to be determined.11. Counsel for the appellant urged that in any event, the High Court was not justified in disagreeing with the considered judgment of the Tribunal on questions purely of appreciation of evidence. But this appeal has been filed with special leave granted under Art. 136 of the Constitution.It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art. 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.12. This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. We may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before the Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of voters".; that some persons, a majority of whom were women, were sitting on the tractor; that a red flag was hoisted and posters of the socialist party were pasted on the tractor; and that some men and women, who came on the tractor, were placed in the queue of voters. There was also the evidence of Raghuraj Singh, P. W. 38, a voter in the constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station ; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer ; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of the two witnesses, Raghuraj Singh, P. W. 30 and Raghuraj Singh Singh P. W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the appellant at the election. There was no sufficient reason for discarding this testimony. Witness Hanuman Singh, P. W. 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing.
### Response:
0
### Explanation:
But this appeal has been filed with special leave granted under Art. 136 of the Constitution.It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art. 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.12. This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. We may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before the Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of voters".; that some persons, a majority of whom were women, were sitting on the tractor; that a red flag was hoisted and posters of the socialist party were pasted on the tractor; and that some men and women, who came on the tractor, were placed in the queue of voters. There was also the evidence of Raghuraj Singh, P. W. 38, a voter in the constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station ; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer ; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of the two witnesses, Raghuraj Singh, P. W. 30 and Raghuraj Singh Singh P. W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the appellant at the election. There was no sufficient reason for discarding this testimony. Witness Hanuman Singh, P. W. 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing.
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Purple Medical Solutions Pvt. Ltd Vs. MIV Therapeutics INC & Another | of clause 6.1 (c and d) of the SPA and clause 4.1(c and g) of the LRA. Accordingly, a dispute notice was issued on 4th October, 2013, calling upon the respondents to expeditiously clear their dues as per the judgment and resolve the dispute as well as allot the pending shares. Having received no response to the dispute notice, the petitioner issued a Notice of Arbitration on 16th October, 2013, appointing Mr. Justice S.H. Kapadia, a former Chief Justice of India, as their nominee arbitrator. Subsequent to the said appointment, the petitioner has been noticed by one Mr. Alan Lindsay claiming to be an assignee of the rights of RHO against the respondents and MIV India of an entitlement to receive a sum of Rs. 850,000. Legal action for recovery of the aforesaid sum of money was threatened in the event of the claim remaining unpaid.9. It is in the aforesaid circumstances that the two applications have been filed under Section 11(6) of the Arbitration Act for appointment of Arbitrator(s) on behalf of both the respondents. 10. According to the petitioner, the second respondent is an alter-ego of the first respondent. The first respondent is merely a corporate veil of the said respondent. All acts/deeds/transactions on behalf of the first respondent was performed by the second respondent including signing of the two agreements; the representations made; and the commitments and undertakings furnished. It is, therefore, submitted that the appointment of an Arbitrator to be made by the Court should not only be on behalf of the first respondent but also on behalf of the second respondent. To support the above reliance has been placed on the decision of this Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. and others [(2013) 1 SCC 641] . The relevant paragraphs placed before the Court may be extracted herein below: "102. Joinder of non-signatory parties to arbitration is not unknown to the arbitration jurisprudence. Even the ICCAs Guide to the Interpretation of the 1958 New York Convention also provides for such situation, stating that when the question arises as to whether binding a non-signatory to an arbitration agreement could be read as being in conflict with the requirement of written agreement under Article I of the Convention, the most compelling answer is "no" and the same is supported by a number of reasons.103. Various legal basis may be applied to bind a non-signatory to an arbitration agreement:103.1 The first theory is that of implied consent, third party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities.103.2 The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called "the alter ego"), joint venture relations, succession and estoppel. They do not rely on the parties intention but rather on the force of the applicable law.104. We may also notice the Canadian case of The City of Prince George v. A.L. Sims & Sons Ltd. [(1998) 23 YCA 223]wherein the Court took the view that an arbitration agreement is neither inoperative nor incapable of being performed if a multi-party dispute arises and not all parties are bound by the arbitration agreement: the parties bound by the arbitration agreement are to be referred to arbitration and court proceedings may continue with respect to the other parties, even if this creates a risk of conflicting decisions.107. If one analyses the above cases and the authors views, it becomes abundantly clear that reference of even non-signatory parties to an arbitration agreement can be made. It may be the result of implied or specific consent or judicial determination. Normally, the parties to the arbitration agreement calling for arbitral reference should be the same as those to the action. But this general concept is subject to exceptions which are that when a third party, i.e. non-signatory party, is claiming or is sued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is signatory to a subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration. " 11. The respondents have not appeared before this Court in spite of service being effected by courier and e-mail under orders of the Court. The process was repeated before the hearing began. Even after the hearing commenced the matters were kept partially heard and the fact that the hearing had commenced was directed to be intimated to the respondents by courier and e-mail which direction has been duly complied with. In spite of the above the respondents have chosen not to contest the proceedings. 12. A perusal of the relevant clauses of the Agreements providing for Arbitration and the facts set out herein adequately satisfies the Court that disputes and differences between the petitioner and the respondents have arisen which require resolution by a process of Arbitration as contemplated in the Agreements between the parties. The petitioner had appointed its Arbitrator (Mr. Justice S.H. Kapadia, a former Chief Justice of India) and despite notice, the respondents have failed to make the requisite appointment. The said lapse/failure would confer jurisdiction under Section 11(6) of the Arbitration Act to appoint an Arbitrator on behalf of the respondents. The facts stated in the present applications showing the involvement of the second respondent and the decision of this Court in Chloro Controls India Private Limited (supra), in my considered view, would justify appointment of an Arbitrator on behalf of both the respondents and permit the process of Arbitration to be conducted by lifting the corporate veil to ascertain the role of the second respondent in the transactions in question as claimed by the petitioner. | 1[ds]12. A perusal of the relevant clauses of the Agreements providing for Arbitration and the facts set out herein adequately satisfies the Court that disputes and differences between the petitioner and the respondents have arisen which require resolution by a process of Arbitration as contemplated in the Agreements between the parties. The petitioner had appointed its Arbitrator (Mr. Justice S.H. Kapadia, a former Chief Justice of India) and despite notice, the respondents have failed to make the requisite appointment. The said lapse/failure would confer jurisdiction under Section 11(6) of the Arbitration Act to appoint an Arbitrator on behalf of the respondents. The facts stated in the present applications showing the involvement of the second respondent and the decision of this Court in Chloro Controls India Private Limited (supra), in my considered view, would justify appointment of an Arbitrator on behalf of both the respondents and permit the process of Arbitration to be conducted by lifting the corporate veil to ascertain the role of the second respondent in the transactions in question as claimed by the petitioner. | 1 | 2,589 | 197 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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of clause 6.1 (c and d) of the SPA and clause 4.1(c and g) of the LRA. Accordingly, a dispute notice was issued on 4th October, 2013, calling upon the respondents to expeditiously clear their dues as per the judgment and resolve the dispute as well as allot the pending shares. Having received no response to the dispute notice, the petitioner issued a Notice of Arbitration on 16th October, 2013, appointing Mr. Justice S.H. Kapadia, a former Chief Justice of India, as their nominee arbitrator. Subsequent to the said appointment, the petitioner has been noticed by one Mr. Alan Lindsay claiming to be an assignee of the rights of RHO against the respondents and MIV India of an entitlement to receive a sum of Rs. 850,000. Legal action for recovery of the aforesaid sum of money was threatened in the event of the claim remaining unpaid.9. It is in the aforesaid circumstances that the two applications have been filed under Section 11(6) of the Arbitration Act for appointment of Arbitrator(s) on behalf of both the respondents. 10. According to the petitioner, the second respondent is an alter-ego of the first respondent. The first respondent is merely a corporate veil of the said respondent. All acts/deeds/transactions on behalf of the first respondent was performed by the second respondent including signing of the two agreements; the representations made; and the commitments and undertakings furnished. It is, therefore, submitted that the appointment of an Arbitrator to be made by the Court should not only be on behalf of the first respondent but also on behalf of the second respondent. To support the above reliance has been placed on the decision of this Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. and others [(2013) 1 SCC 641] . The relevant paragraphs placed before the Court may be extracted herein below: "102. Joinder of non-signatory parties to arbitration is not unknown to the arbitration jurisprudence. Even the ICCAs Guide to the Interpretation of the 1958 New York Convention also provides for such situation, stating that when the question arises as to whether binding a non-signatory to an arbitration agreement could be read as being in conflict with the requirement of written agreement under Article I of the Convention, the most compelling answer is "no" and the same is supported by a number of reasons.103. Various legal basis may be applied to bind a non-signatory to an arbitration agreement:103.1 The first theory is that of implied consent, third party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities.103.2 The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called "the alter ego"), joint venture relations, succession and estoppel. They do not rely on the parties intention but rather on the force of the applicable law.104. We may also notice the Canadian case of The City of Prince George v. A.L. Sims & Sons Ltd. [(1998) 23 YCA 223]wherein the Court took the view that an arbitration agreement is neither inoperative nor incapable of being performed if a multi-party dispute arises and not all parties are bound by the arbitration agreement: the parties bound by the arbitration agreement are to be referred to arbitration and court proceedings may continue with respect to the other parties, even if this creates a risk of conflicting decisions.107. If one analyses the above cases and the authors views, it becomes abundantly clear that reference of even non-signatory parties to an arbitration agreement can be made. It may be the result of implied or specific consent or judicial determination. Normally, the parties to the arbitration agreement calling for arbitral reference should be the same as those to the action. But this general concept is subject to exceptions which are that when a third party, i.e. non-signatory party, is claiming or is sued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is signatory to a subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration. " 11. The respondents have not appeared before this Court in spite of service being effected by courier and e-mail under orders of the Court. The process was repeated before the hearing began. Even after the hearing commenced the matters were kept partially heard and the fact that the hearing had commenced was directed to be intimated to the respondents by courier and e-mail which direction has been duly complied with. In spite of the above the respondents have chosen not to contest the proceedings. 12. A perusal of the relevant clauses of the Agreements providing for Arbitration and the facts set out herein adequately satisfies the Court that disputes and differences between the petitioner and the respondents have arisen which require resolution by a process of Arbitration as contemplated in the Agreements between the parties. The petitioner had appointed its Arbitrator (Mr. Justice S.H. Kapadia, a former Chief Justice of India) and despite notice, the respondents have failed to make the requisite appointment. The said lapse/failure would confer jurisdiction under Section 11(6) of the Arbitration Act to appoint an Arbitrator on behalf of the respondents. The facts stated in the present applications showing the involvement of the second respondent and the decision of this Court in Chloro Controls India Private Limited (supra), in my considered view, would justify appointment of an Arbitrator on behalf of both the respondents and permit the process of Arbitration to be conducted by lifting the corporate veil to ascertain the role of the second respondent in the transactions in question as claimed by the petitioner.
### Response:
1
### Explanation:
12. A perusal of the relevant clauses of the Agreements providing for Arbitration and the facts set out herein adequately satisfies the Court that disputes and differences between the petitioner and the respondents have arisen which require resolution by a process of Arbitration as contemplated in the Agreements between the parties. The petitioner had appointed its Arbitrator (Mr. Justice S.H. Kapadia, a former Chief Justice of India) and despite notice, the respondents have failed to make the requisite appointment. The said lapse/failure would confer jurisdiction under Section 11(6) of the Arbitration Act to appoint an Arbitrator on behalf of the respondents. The facts stated in the present applications showing the involvement of the second respondent and the decision of this Court in Chloro Controls India Private Limited (supra), in my considered view, would justify appointment of an Arbitrator on behalf of both the respondents and permit the process of Arbitration to be conducted by lifting the corporate veil to ascertain the role of the second respondent in the transactions in question as claimed by the petitioner.
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Dalchand Vs. Municipal Corporation, Bhopal and Another | 1. One of the questions raised in this petition for special leave to appeal to this Court is whether the failure to supply a copy of the Report of the Public Analyst within the period of 10 days stipulated by Rule 9(i) of the Prevention of Food Adulteration Act, as it was in force at the relevant time - it may be noticed here that R. 9(i) which was in force at the relevant time has since been omitted with effect from January 4, 1977 - was fatal to a prosecution under the Prevention of Food Adulteration Act. Was R. 9(j) mandatory or directory ? There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the stature is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat the design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision in necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation, with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analysts Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analysts Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar (1977 Cri LJ 1634) (Andh Pra) and Bhola Nath v. State (1977 Cri LJ 154) (Cal) to the extent that they hold that R. 9(j) was mandatory are not good law. The petition is dismissed. | 0[ds]It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation, with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analysts Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect ofwith the rule was such as to wholly deprive the right of the person to challenge the Public Analysts Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar (1977 Cri LJ 1634) (Andh Pra) and Bhola Nath v. State (1977 Cri LJ 154) (Cal) to the extent that they hold that R. 9(j) was mandatory are not good law. | 0 | 686 | 420 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1. One of the questions raised in this petition for special leave to appeal to this Court is whether the failure to supply a copy of the Report of the Public Analyst within the period of 10 days stipulated by Rule 9(i) of the Prevention of Food Adulteration Act, as it was in force at the relevant time - it may be noticed here that R. 9(i) which was in force at the relevant time has since been omitted with effect from January 4, 1977 - was fatal to a prosecution under the Prevention of Food Adulteration Act. Was R. 9(j) mandatory or directory ? There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the stature is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat the design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision in necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation, with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analysts Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analysts Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar (1977 Cri LJ 1634) (Andh Pra) and Bhola Nath v. State (1977 Cri LJ 154) (Cal) to the extent that they hold that R. 9(j) was mandatory are not good law. The petition is dismissed.
### Response:
0
### Explanation:
It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation, with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analysts Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect ofwith the rule was such as to wholly deprive the right of the person to challenge the Public Analysts Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar (1977 Cri LJ 1634) (Andh Pra) and Bhola Nath v. State (1977 Cri LJ 154) (Cal) to the extent that they hold that R. 9(j) was mandatory are not good law.
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Sadhu Saran Singh Vs. State of U.P. & Others | and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”iv) We are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death sentence. 22. For the aforesaid reasons, we reach to the irresistible conclusion that these appeals deserve to be allowed and the impugned judgment and order has to be set aside. | 1[ds]Having carefully considered the impugned judgment and order passed by the High Court as also that of the Trial Court and after perusing the records and giving anxious consideration to the facts of the case on hand in the light of well-settled law, in our considered opinion the judgment of the High Court deserves to be set aside on the ground of lack of reasoning and for the following compelling and substantialThe High Court had taken a view that PW 1 – Bhola Singh, father of the deceased (brother of the appellant before us) had changed his version at the time of second Chief Examination. Upon giving our anxious consideration to the chronology of events, we find that after commencement of the trial, the evidence of PW1 was started on 9.8.1996 and the chief-examination was concluded on 21.8.1996. On 9.1.1997 the cross-examination was started and further on 29.5.1997 the second Examination-in-chief was started as some of the accused had surrendered before the Court in the meanwhile. Second time Examination-in-chief was conducted on 29.5.1997 and ended up on 19.06.1997. Second Cross-examination started on 17.07.1997 which was further conducted on 24.7.1997. As seen from the various dates, the record indicates that the first chief-examination of PW 1, which started on 09.08.1996, was concluded after completing the second cross-examination on 24.7.1997. So, it is clear from the evidence of PW 1 itself that the examination and cross-examination had taken place several times in a piece-meal manner and the Court was forced to conduct the chief-examination repeatedly because of the subsequent surrender of some of the accused persons. While appreciating the evidence of PW1, the Courts must be conscious of the length of time consumed in recording the evidence of the prosecution witness. From a perusal of the evidence of PW1, the High Court was of the opinion that there were discrepancies and deviations in the evidence of PW1. In our considered opinion, the evidence of PW 1, who is an eyewitness who lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW1 might have been due to the long gap between the date of incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to disbelieve his evidence. The statements of PW 1 are fairly corroborated by the statements of PW 2. Hence, we are of the considered opinion that the occurrence had taken place in front of Baithaka of PW1—Bhola Singh and he had witnessed the said occurrence along with PW-2 Baijnath and the injured Ganga Singh.ii) Similarly, we find no reason whatsoever to disbelieve the evidence of PW2 (brother-in-law of PW1 Bhola Singh), another key eyewitness present at the time of incident. A valiant attempt is also made by the defence to discredit his evidence that he is only a chance witness and not an eyewitness to the incident and his presence is doubtful. But, nothing has come out in his examination-in-chief or in cross-examination which creates a doubt on the veracity of his statement. Moreover, he has been consistent in his version and fully supported the prosecution story. However, his admission that at the time of panchnama, he has signed as suggested by the Darogaji and PW1 asked him as to whose names should be written and whose names should be left out in the panchnama, have to be seen in the context of preparing the panchnama and shall not be attributed otherwise to disbelieve his evidence.iii) We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the Doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence of PW 1 cannot be discarded as primacy has to be given to the ocular evidence particularly in the case of minor discrepancies. This Court in Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476 , wherein this Court has heldSo far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to beWe are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death | 1 | 5,545 | 1,891 | ### Instruction:
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and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”iv) We are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death sentence. 22. For the aforesaid reasons, we reach to the irresistible conclusion that these appeals deserve to be allowed and the impugned judgment and order has to be set aside.
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of minor discrepancies. This Court in Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476 , wherein this Court has heldSo far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to beWe are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death
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United India Insurance Company Limited Vs. Antonetta D Souza | Vishnus case (1985 Mah LT 22) which was, as already said, approved by the Division Bench in Deepathummas case (1986 Ace CJ 520 ). If this is so, as otherwise is apparent, it is obvious that the learned Judge could not, in any event, have held the Insurance Company liable up to the limit of Rs. 75,000/- in each of the claim petitions, for it is common ground that all the claim petitions arise out of the same accident involving the same vehicle where the victims thereof were travelling as passengers. The liability of the Insurance Company was indeed, in the light of the said decisions of this Court, restricted to Rs. 75,000/- in all the four petitions and such liability had to be apportioned pro rata among the claimants in each of the four petitions. ( 9 ) MR. Coelho Pereira has contended that this is not the real meaning and import of the above decisions of this Court, for any one accident, spoken of in Sub-S. (2) of S. 95 has to be looked into from the angle of the victim of the accident as held in Modis case (AIR 1981 SC 2059 ) and that since there existed four separate accidents from the angle of each of the victims of the accident, the liability of the Insurance Company goes in each of such cases up to the limit of Rs. 75,000/ -. We are however unable to accept this view. In Modis case, the Supreme Court has been dealing with the provisions of S. 95 (2) (a) as they stood before the amendment and it was in the context of the said provisions of law that the Court held that the expression any one accident occurring in the Section had to be looked into from the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. Then, the Court proceeded to make a reference in para 24 to its judgement in sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. , 1971 Acc CJ 206 ; (AIR 1971 SC 1624 ) to observe that the said judgement was not an authority on the interpretation of Cl. (a) of S. 95 (2), for the matter before the Supreme Court in that case was in respect of Cl. (b ). Then, after quoting the observations made in Sheikhupuras case to the effect that it is clear that the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), their Lordships observed in Modis case that in view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and had therefore neither been made nor considered by the Court. It was added that different consideration may arise under Cl. (b) as amended. It is thus clear that though in Modis case the Supreme Court has not taken a view different from the earlier view in Sheikhupuras case inasmuch as the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), nonetheless it left the issue open. Now, as it is seen, this Court has in the circumstances held in the cases of Kashi Vishnu and Deepathumma that the expression any one accident has also to be looked into from the angle of the victim of the accident of Cl. (b) and considering the express provision of Sub-S. (4), further held that in any event, the liability of the Insurance Company will not exceed the outer limits fixed in the Section. This view is, in our opinion, in conformity with the law laid down by the Supreme Court in Sheikhupura and Modis case taken together and interprets it. Thus, the view taken by this Court in Kashi Vishnu and Deepathummas cases is binding on us, for it is well-settled that an interpretation and equally, a misinterpretation of a binding decision of the Supreme Court will itself be binding subsequently on a co-ordinate Court and must be got corrected by a higher Court and no co-ordinate Court on that ground may refuse to follow an earlier decision opining that in its view the earlier decision had wrongly understood and improperly applied a decision of a higher Court. This proposition of law gets support in the observations made in Halsburys Laws of England, Third Edition Vol. 22, page 80 and in the decision of a Division Bench of this Court in Panjumal Hassomal Advani v. Harpal Singh Abnashi Singh Sawhney, AIR 1975 Bom 120 . ( 10 ) WE already observed that in Deepathummas case (1986 Acc CJ 52d) the Division Bench has held that the liability of the Insurance Company is to be distributed pro rata among the several claimants. In the present cases, the amounts of compensation awarded are not the same, for in Appeal No. 46/85 the compensation awarded was of Rs. 52,000/-, in Appeal No. 47/85 of Rs. 50,000/- in Appeal No. 50/85, of Rs. 78,000/- and finally, in Appeal No. 51/85, of Rs. 25,000/- only. In the first three cases, the victims met with their deaths in the accident, while in the fourth the claimant got injured. We find it rather difficult to apportion to total liability (Rs. 75,000/-) of the Insurance Company (Appellant) among the claimants in each of the petitions, but since the total amount of the compensation to be paid to the claimants in the four petitions is of Rs. 2,05,000/- and the balance of Rs. 1,30,000/- is to be paid by the owner of the vehicle, we think that in the circumstances, the said liability of the appellant should be up to the limit of Rs. 18,750/- in each of the petitions, the remainder of the compensation being to be paid by the owner of the vehicle, the respondent Teotonio Pereira. | 1[ds]( 7 ) WE do not think that the view advanced by the learned counsel for the owner of the vehicle is correctWe are however unable to accept this view. In Modis case, the Supreme Court has been dealing with the provisions of S. 95 (2) (a) as they stood before the amendment and it was in the context of the said provisions of law that the Court held that the expression any one accident occurring in the Section had to be looked into from the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. Then, the Court proceeded to make a reference in para 24 to its judgement in sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. , 1971 Acc CJ 206 ; (AIR 1971 SC 1624 ) to observe that the said judgement was not an authority on the interpretation of Cl. (a) of S. 95 (2), for the matter before the Supreme Court in that case was in respect of Cl. (b ). Then, after quoting the observations made in Sheikhupuras case to the effect that it is clear that the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), their Lordships observed in Modis case that in view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and had therefore neither been made nor considered by the Court. It was added that different consideration may arise under Cl. (b) as amended. It is thus clear that though in Modis case the Supreme Court has not taken a view different from the earlier view in Sheikhupuras case inasmuch as the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), nonetheless it left the issue open. Now, as it is seen, this Court has in the circumstances held in the cases of Kashi Vishnu and Deepathumma that the expression any one accident has also to be looked into from the angle of the victim of the accident of Cl. (b) and considering the express provision of. (4), further held that in any event, the liability of the Insurance Company will not exceed the outer limits fixed in the Section. This view is, in our opinion, in conformity with the law laid down by the Supreme Court in Sheikhupura and Modis case taken together and interprets it. Thus, the view taken by this Court in Kashi Vishnu and Deepathummas cases is binding on us, for it isd that an interpretation and equally, a misinterpretation of a binding decision of the Supreme Court will itself be binding subsequently on ae Court and must be got corrected by a higher Court and noe Court on that ground may refuse to follow an earlier decision opining that in its view the earlier decision had wrongly understood and improperly applied a decision of a higher Court. This proposition of law gets support in the observations made in Halsburys Laws of England, Third Edition Vol. 22, page 80 and in the decision of a Division Bench of this Court in Panjumal Hassomal Advani v. Harpal Singh Abnashi Singh Sawhney, AIR 1975 Bom 120 ( 10 ) WE already observed that in Deepathummas case (1986 Acc CJ 52d) the Division Bench has held that the liability of the Insurance Company is to be distributed pro rata among the several claimants. In the present cases, the amounts of compensation awarded are not the same, for in Appeal No. 46/85 the compensation awarded was of Rs., in Appeal No. 47/85 of Rs. 50,000/in Appeal No. 50/85, of Rs. 78,000/and finally, in Appeal No. 51/85, of Rs. 25,000/only. In the first three cases, the victims met with their deaths in the accident, while in the fourth the claimant got injured. We find it rather difficult to apportion to total liability (Rs.) of the Insurance Company (Appellant) among the claimants in each of the petitions, but since the total amount of the compensation to be paid to the claimants in the four petitions is of Rs. 2,05,000/and the balance of Rs. 1,30,000/is to be paid by the owner of the vehicle, we think that in the circumstances, the said liability of the appellant should be up to the limit of Rs. 18,750/in each of the petitions, the remainder of the compensation being to be paid by the owner of the vehicle, the respondent Teotonio Pereira. | 1 | 3,222 | 867 | ### 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:
Vishnus case (1985 Mah LT 22) which was, as already said, approved by the Division Bench in Deepathummas case (1986 Ace CJ 520 ). If this is so, as otherwise is apparent, it is obvious that the learned Judge could not, in any event, have held the Insurance Company liable up to the limit of Rs. 75,000/- in each of the claim petitions, for it is common ground that all the claim petitions arise out of the same accident involving the same vehicle where the victims thereof were travelling as passengers. The liability of the Insurance Company was indeed, in the light of the said decisions of this Court, restricted to Rs. 75,000/- in all the four petitions and such liability had to be apportioned pro rata among the claimants in each of the four petitions. ( 9 ) MR. Coelho Pereira has contended that this is not the real meaning and import of the above decisions of this Court, for any one accident, spoken of in Sub-S. (2) of S. 95 has to be looked into from the angle of the victim of the accident as held in Modis case (AIR 1981 SC 2059 ) and that since there existed four separate accidents from the angle of each of the victims of the accident, the liability of the Insurance Company goes in each of such cases up to the limit of Rs. 75,000/ -. We are however unable to accept this view. In Modis case, the Supreme Court has been dealing with the provisions of S. 95 (2) (a) as they stood before the amendment and it was in the context of the said provisions of law that the Court held that the expression any one accident occurring in the Section had to be looked into from the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. Then, the Court proceeded to make a reference in para 24 to its judgement in sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. , 1971 Acc CJ 206 ; (AIR 1971 SC 1624 ) to observe that the said judgement was not an authority on the interpretation of Cl. (a) of S. 95 (2), for the matter before the Supreme Court in that case was in respect of Cl. (b ). Then, after quoting the observations made in Sheikhupuras case to the effect that it is clear that the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), their Lordships observed in Modis case that in view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and had therefore neither been made nor considered by the Court. It was added that different consideration may arise under Cl. (b) as amended. It is thus clear that though in Modis case the Supreme Court has not taken a view different from the earlier view in Sheikhupuras case inasmuch as the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), nonetheless it left the issue open. Now, as it is seen, this Court has in the circumstances held in the cases of Kashi Vishnu and Deepathumma that the expression any one accident has also to be looked into from the angle of the victim of the accident of Cl. (b) and considering the express provision of Sub-S. (4), further held that in any event, the liability of the Insurance Company will not exceed the outer limits fixed in the Section. This view is, in our opinion, in conformity with the law laid down by the Supreme Court in Sheikhupura and Modis case taken together and interprets it. Thus, the view taken by this Court in Kashi Vishnu and Deepathummas cases is binding on us, for it is well-settled that an interpretation and equally, a misinterpretation of a binding decision of the Supreme Court will itself be binding subsequently on a co-ordinate Court and must be got corrected by a higher Court and no co-ordinate Court on that ground may refuse to follow an earlier decision opining that in its view the earlier decision had wrongly understood and improperly applied a decision of a higher Court. This proposition of law gets support in the observations made in Halsburys Laws of England, Third Edition Vol. 22, page 80 and in the decision of a Division Bench of this Court in Panjumal Hassomal Advani v. Harpal Singh Abnashi Singh Sawhney, AIR 1975 Bom 120 . ( 10 ) WE already observed that in Deepathummas case (1986 Acc CJ 52d) the Division Bench has held that the liability of the Insurance Company is to be distributed pro rata among the several claimants. In the present cases, the amounts of compensation awarded are not the same, for in Appeal No. 46/85 the compensation awarded was of Rs. 52,000/-, in Appeal No. 47/85 of Rs. 50,000/- in Appeal No. 50/85, of Rs. 78,000/- and finally, in Appeal No. 51/85, of Rs. 25,000/- only. In the first three cases, the victims met with their deaths in the accident, while in the fourth the claimant got injured. We find it rather difficult to apportion to total liability (Rs. 75,000/-) of the Insurance Company (Appellant) among the claimants in each of the petitions, but since the total amount of the compensation to be paid to the claimants in the four petitions is of Rs. 2,05,000/- and the balance of Rs. 1,30,000/- is to be paid by the owner of the vehicle, we think that in the circumstances, the said liability of the appellant should be up to the limit of Rs. 18,750/- in each of the petitions, the remainder of the compensation being to be paid by the owner of the vehicle, the respondent Teotonio Pereira.
### Response:
1
### Explanation:
( 7 ) WE do not think that the view advanced by the learned counsel for the owner of the vehicle is correctWe are however unable to accept this view. In Modis case, the Supreme Court has been dealing with the provisions of S. 95 (2) (a) as they stood before the amendment and it was in the context of the said provisions of law that the Court held that the expression any one accident occurring in the Section had to be looked into from the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. Then, the Court proceeded to make a reference in para 24 to its judgement in sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. , 1971 Acc CJ 206 ; (AIR 1971 SC 1624 ) to observe that the said judgement was not an authority on the interpretation of Cl. (a) of S. 95 (2), for the matter before the Supreme Court in that case was in respect of Cl. (b ). Then, after quoting the observations made in Sheikhupuras case to the effect that it is clear that the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), their Lordships observed in Modis case that in view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and had therefore neither been made nor considered by the Court. It was added that different consideration may arise under Cl. (b) as amended. It is thus clear that though in Modis case the Supreme Court has not taken a view different from the earlier view in Sheikhupuras case inasmuch as the statutory liability of the insurer to indemnify the insured is as prescribed in S. 95 (2), nonetheless it left the issue open. Now, as it is seen, this Court has in the circumstances held in the cases of Kashi Vishnu and Deepathumma that the expression any one accident has also to be looked into from the angle of the victim of the accident of Cl. (b) and considering the express provision of. (4), further held that in any event, the liability of the Insurance Company will not exceed the outer limits fixed in the Section. This view is, in our opinion, in conformity with the law laid down by the Supreme Court in Sheikhupura and Modis case taken together and interprets it. Thus, the view taken by this Court in Kashi Vishnu and Deepathummas cases is binding on us, for it isd that an interpretation and equally, a misinterpretation of a binding decision of the Supreme Court will itself be binding subsequently on ae Court and must be got corrected by a higher Court and noe Court on that ground may refuse to follow an earlier decision opining that in its view the earlier decision had wrongly understood and improperly applied a decision of a higher Court. This proposition of law gets support in the observations made in Halsburys Laws of England, Third Edition Vol. 22, page 80 and in the decision of a Division Bench of this Court in Panjumal Hassomal Advani v. Harpal Singh Abnashi Singh Sawhney, AIR 1975 Bom 120 ( 10 ) WE already observed that in Deepathummas case (1986 Acc CJ 52d) the Division Bench has held that the liability of the Insurance Company is to be distributed pro rata among the several claimants. In the present cases, the amounts of compensation awarded are not the same, for in Appeal No. 46/85 the compensation awarded was of Rs., in Appeal No. 47/85 of Rs. 50,000/in Appeal No. 50/85, of Rs. 78,000/and finally, in Appeal No. 51/85, of Rs. 25,000/only. In the first three cases, the victims met with their deaths in the accident, while in the fourth the claimant got injured. We find it rather difficult to apportion to total liability (Rs.) of the Insurance Company (Appellant) among the claimants in each of the petitions, but since the total amount of the compensation to be paid to the claimants in the four petitions is of Rs. 2,05,000/and the balance of Rs. 1,30,000/is to be paid by the owner of the vehicle, we think that in the circumstances, the said liability of the appellant should be up to the limit of Rs. 18,750/in each of the petitions, the remainder of the compensation being to be paid by the owner of the vehicle, the respondent Teotonio Pereira.
|
Oriental Insurance Co. Ltd Vs. Surendra Nath Loomba | eventually held as follows: - “19. It is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the “comprehensive/ package policy”. Before the High Court the Competent Authority of IRDA had stated that on 2nd June, 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the “comprehensive policy” and the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the “comprehensive/package policy” irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued. 20. It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually stated thus:- “In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/ package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC’s directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.” 21. In view of the aforesaid factual position there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing than a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same. 22. In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an “Act Policy” or “Comprehensive/Package Policy”. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.” 14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant-insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a “Comprehensive/Package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law.16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference. | 1[ds]14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record.When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law.16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference.Recently this Bench in National Insurance Company Ltd. v. Balakrishnan & Another [Civil Appeal No.8163 of 2012 (Arising out of SLP(C) No. 1232/2012) decided on 20.11.2012], after referring to various decisions and copiously to the decision in Bhagyalakshmi (supra), held that there is a distinction between. Thereafter, the Bench took note of a decision rendered by Delhi High Court in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another [2011 ACJ 1415 ] wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA). This Court referred to the portion of circulars dated 16.11.2009 and 3.12.2009 which had been reproduced by the High Court and eventually held asIt is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under theBefore the High Court the Competent Authority of IRDA had stated that on 2nd June, 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under thend the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under theve of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually statedview of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/ package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on aor the occupants in a private car. In fact, in view of thedirectives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.In view of the aforesaid factual position there is no scintilla of doubt that ald cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that ands on a different footing than a. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that ars the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of thech admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexurehas been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a | 1 | 2,731 | 1,116 | ### 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:
eventually held as follows: - “19. It is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the “comprehensive/ package policy”. Before the High Court the Competent Authority of IRDA had stated that on 2nd June, 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the “comprehensive policy” and the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the “comprehensive/package policy” irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued. 20. It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually stated thus:- “In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/ package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC’s directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.” 21. In view of the aforesaid factual position there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing than a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same. 22. In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an “Act Policy” or “Comprehensive/Package Policy”. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.” 14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant-insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a “Comprehensive/Package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law.16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference.
### Response:
1
### Explanation:
filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law.16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference.Recently this Bench in National Insurance Company Ltd. v. Balakrishnan & Another [Civil Appeal No.8163 of 2012 (Arising out of SLP(C) No. 1232/2012) decided on 20.11.2012], after referring to various decisions and copiously to the decision in Bhagyalakshmi (supra), held that there is a distinction between. Thereafter, the Bench took note of a decision rendered by Delhi High Court in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another [2011 ACJ 1415 ] wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA). This Court referred to the portion of circulars dated 16.11.2009 and 3.12.2009 which had been reproduced by the High Court and eventually held asIt is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under theBefore the High Court the Competent Authority of IRDA had stated that on 2nd June, 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under thend the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under theve of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually statedview of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/ package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on aor the occupants in a private car. In fact, in view of thedirectives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.In view of the aforesaid factual position there is no scintilla of doubt that ald cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that ands on a different footing than a. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that ars the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of thech admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexurehas been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a
|
Commissioner of Customs Central Excise & Service Tax, Guntur Vs. M/s. The Andhra Sugars Ltd | final products ‘from the place of removal’ to the warehouse or customer’s place etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. The matter is squarely covered by the Board’s Circular dated August 23, 2007, relevant portion whereof is as under:“ISSUE: Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s Gujarat Ambuja Cements Ltd. vs CCE, Ludhiana [2007 (6) STR 249 Tri-D]. In this case, CESTAT has made the following observations:-“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of ‘input services’ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws’ scheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions”.Similarly, in the case of M/s Ultratech Cements Ltd vs CCE Bhavnagar 2007-TOIL-429-CESTAT-AHM, it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer / consignor can take credit on the service tax paid on outward transport of goods up to the place of removal and not beyond that.8.2 In this connection, the phrase ‘place of removal’ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase ‘place of removal’ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase ‘place of removal’ is defined under section 4 of the Central Excise Act, 1944. It states that,-“place of removal” means-(i) a factory or any other place or premises of production or manufacture of the excisable goods ;(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty ;(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;from where such goods are removed.”It is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place of removal’ does not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”8) As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place of removal’ are defined in Section 4 of the Act. It is not the case of the Department that the three conditions laid down in the said Circular are not satisfied. If we accept the contention of the Department, it would nullify the effect of the word ‘from’ the place of removal appearing in the aforesaid definition. Once it is accepted that place of removal is the factory premises of the assessee, outward transportation ‘from the said place’ would clearly amount to input service. That place can be warehouse of the manufacturer or it can be customer’s place if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service. | 0[ds]7) Having regard to the definition of ‘inputthat was prevailing at the relevant time i.e. prior to April 1, 2008, the aforesaid contention of the Department cannot be accepted. As per the said definition, service used by the manufacturer of clearance of final products ‘from the place ofto the warehouse orplace etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17,is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from apaid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place ofdoes not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the saidAs can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place ofare defined in Section 4 of the Act. It is not the case of the Department that the three conditions laid down in the said Circular are not satisfied. If we accept the contention of the Department, it would nullify the effect of the wordthe place of removal appearing in the aforesaid definition. Once it is accepted that place of removal is the factory premises of the assessee, outward transportation ‘from the saidwould clearly amount to input service. That place can be warehouse of the manufacturer or it can beplace if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service. | 0 | 2,402 | 576 | ### 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:
final products ‘from the place of removal’ to the warehouse or customer’s place etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. The matter is squarely covered by the Board’s Circular dated August 23, 2007, relevant portion whereof is as under:“ISSUE: Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s Gujarat Ambuja Cements Ltd. vs CCE, Ludhiana [2007 (6) STR 249 Tri-D]. In this case, CESTAT has made the following observations:-“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of ‘input services’ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws’ scheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions”.Similarly, in the case of M/s Ultratech Cements Ltd vs CCE Bhavnagar 2007-TOIL-429-CESTAT-AHM, it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer / consignor can take credit on the service tax paid on outward transport of goods up to the place of removal and not beyond that.8.2 In this connection, the phrase ‘place of removal’ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase ‘place of removal’ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase ‘place of removal’ is defined under section 4 of the Central Excise Act, 1944. It states that,-“place of removal” means-(i) a factory or any other place or premises of production or manufacture of the excisable goods ;(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty ;(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;from where such goods are removed.”It is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place of removal’ does not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”8) As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place of removal’ are defined in Section 4 of the Act. It is not the case of the Department that the three conditions laid down in the said Circular are not satisfied. If we accept the contention of the Department, it would nullify the effect of the word ‘from’ the place of removal appearing in the aforesaid definition. Once it is accepted that place of removal is the factory premises of the assessee, outward transportation ‘from the said place’ would clearly amount to input service. That place can be warehouse of the manufacturer or it can be customer’s place if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service.
### Response:
0
### Explanation:
7) Having regard to the definition of ‘inputthat was prevailing at the relevant time i.e. prior to April 1, 2008, the aforesaid contention of the Department cannot be accepted. As per the said definition, service used by the manufacturer of clearance of final products ‘from the place ofto the warehouse orplace etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17,is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from apaid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place ofdoes not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the saidAs can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place ofare defined in Section 4 of the Act. It is not the case of the Department that the three conditions laid down in the said Circular are not satisfied. If we accept the contention of the Department, it would nullify the effect of the wordthe place of removal appearing in the aforesaid definition. Once it is accepted that place of removal is the factory premises of the assessee, outward transportation ‘from the saidwould clearly amount to input service. That place can be warehouse of the manufacturer or it can beplace if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service.
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Sau Rajani Vs. Sau Smita & Anr | drainage line in the premises. 14. Under Section 9 of CPC, the civil court has the jurisdiction to try all suits of a civil nature, except those in respect of which the jurisdiction is barred either expressly or impliedly by a specific provision of law. In Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 , a Constitution Bench laid down the law on ouster of jurisdiction of civil courts. Chief Justice M Hidayatullah writing for the Bench laid down the principles on bar of jurisdiction of the civil courts as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. […] (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. (emphasis supplied) 15. In Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8 SCC 726 ; Also see Competent Authority, Calcutta under the Urban Land (Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542 , a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. The relevant observations are extracted below: 12. The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil courts jurisdiction is ousted. 13. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in the negative, exclusion of the civil courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge Bench of this Court observed: (SCC pp. 302h-303a) There is a presumption that a civil court has jurisdiction. Ouster of civil courts jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. 16. The preamble to the Act states that it is an Act to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas. The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the appellant in the suit. The reliefs sought by the appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the defendants from constructing over the open site and causing nuisance; and (iii) restoration of the water connection as it was prior to the construction. The appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first respondent had erected on the open space. The reliefs claimed by the appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act. | 1[ds]14. Under Section 9 of CPC, the civil court has the jurisdiction to try all suits of a civil nature, except those in respect of which the jurisdiction is barred either expressly or impliedly by a specific provision of law. In Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 , a Constitution Bench laid down the law on ouster of jurisdiction of civil courts. Chief Justice M Hidayatullah writing for the Bench laid down the principles on bar of jurisdiction of the civil courts as follows:(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.15. In Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8 SCC 726 ; Also see Competent Authority, Calcutta under the Urban Land (Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542 , a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. The relevant observations are extracted below:12. The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil courts jurisdiction is ousted.13. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in the negative, exclusion of the civil courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge Bench of this Court observed: (SCC pp. 302h-303a)There is a presumption that a civil court has jurisdiction. Ouster of civil courts jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.16. The preamble to the Act states that it is an Act to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas. The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the appellant in the suit. The reliefs sought by the appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the defendants from constructing over the open site and causing nuisance; and (iii) restoration of the water connection as it was prior to the construction. The appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first respondent had erected on the open space. The reliefs claimed by the appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act. | 1 | 3,684 | 1,080 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
drainage line in the premises. 14. Under Section 9 of CPC, the civil court has the jurisdiction to try all suits of a civil nature, except those in respect of which the jurisdiction is barred either expressly or impliedly by a specific provision of law. In Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 , a Constitution Bench laid down the law on ouster of jurisdiction of civil courts. Chief Justice M Hidayatullah writing for the Bench laid down the principles on bar of jurisdiction of the civil courts as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. […] (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. (emphasis supplied) 15. In Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8 SCC 726 ; Also see Competent Authority, Calcutta under the Urban Land (Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542 , a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. The relevant observations are extracted below: 12. The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil courts jurisdiction is ousted. 13. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in the negative, exclusion of the civil courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge Bench of this Court observed: (SCC pp. 302h-303a) There is a presumption that a civil court has jurisdiction. Ouster of civil courts jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. 16. The preamble to the Act states that it is an Act to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas. The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the appellant in the suit. The reliefs sought by the appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the defendants from constructing over the open site and causing nuisance; and (iii) restoration of the water connection as it was prior to the construction. The appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first respondent had erected on the open space. The reliefs claimed by the appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act.
### Response:
1
### Explanation:
14. Under Section 9 of CPC, the civil court has the jurisdiction to try all suits of a civil nature, except those in respect of which the jurisdiction is barred either expressly or impliedly by a specific provision of law. In Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 , a Constitution Bench laid down the law on ouster of jurisdiction of civil courts. Chief Justice M Hidayatullah writing for the Bench laid down the principles on bar of jurisdiction of the civil courts as follows:(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.15. In Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8 SCC 726 ; Also see Competent Authority, Calcutta under the Urban Land (Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542 , a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. The relevant observations are extracted below:12. The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil courts jurisdiction is ousted.13. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in the negative, exclusion of the civil courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge Bench of this Court observed: (SCC pp. 302h-303a)There is a presumption that a civil court has jurisdiction. Ouster of civil courts jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.16. The preamble to the Act states that it is an Act to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas. The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the appellant in the suit. The reliefs sought by the appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the defendants from constructing over the open site and causing nuisance; and (iii) restoration of the water connection as it was prior to the construction. The appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first respondent had erected on the open space. The reliefs claimed by the appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act.
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Sardar Bahadur S. Indra Singh Trust Vs. Commissioner Of Income Tax, Bengal | is not in issue before us, now, the same having been held against the Department by the Tribunal. 7. While dealing with the Reference made by the Tribunal, as mentioned earlier, the High Court upheld the validity of the gift made by Ajaib Singh but strangely enough after holding that the gift in question was a valid one, it came to the conclusion that the said gift did not have the effect of augmenting the assessees Trust and therefore the assessee was not entitled to the refund of the tax deducted at the source on the dividend accrued on the shares gifted by Ajaib Singh. To us these findings appear to be somewhat mutually conflicting. If the gift in question was a valid one then the Trust became the owner of the shares gifted. That being so it also became the owner of the dividends received. Hence those dividends will have to be considered as the income of the Trust. 8. The reason which persuaded the learned judges of the High Court for coming to the above conclusion are set out in their judgment at pp. 21 and 22 of the printed paper book. We shall quote that part of the High Courts judgment:"The question for our consideration, however, is whether the gift, as accepted by the trustee, had the effect of augmenting the assessee trust for taxation purposes, or whether the effect of it was that it remained a separate trust in the hands of the trustees of the assessee trust, with liberty to them to apply the income of the subsequent trust for the benefit of the assessee turst. Mr. Bannerje urged that it was not necessary expressly to empower the trust as of a public trust to accept gifts, donations or endowments. That, he submitted was a power inherently vested in them. We have our doubts. Trust is a confidence reposed in a person or persons, with respect to property of which he had or they have legal possession or over which he or they can exercise power to the intent that he or they may hold the property or exercise the power for the benefit of some other person or object. Now, this confidence may not necessarily include in itself the liberty that the trustees would go on accepting donations and try to augment the Trust to such dimensions that the purpose for which the original trust was created may be swamped or modified or qualified. If a settlor wants to invest the trustees with such a power, it is but reasonable to expect that the power should be conferred by the deed which created the trust. The trust that we have to consider does not appear to confer upon the trustees the further power to accept donations gifts or endowments. We, therefore, do not think that the trustees have the liberty or the right to accept further gifts, in the absence of specific authorisation, augment the original trust and then claim the benefit of Section 4 (3) (i) of the Indian Income-tax Act", 9. It is somewhat difficult to follow the reasoning adopted by the learned Judges of the High Court. Either the gift made by Ajaib Singh and accepted by the Trustees was a valid gift or it was not a valid gift If it was a valid gift, the shares gifted became the property of the Trust. If it was not a valid gift, the shares still continued to be the property of Ajaib Singh. It is nobodys case that there was a Trust within a Trust. No such Trust is put forward either by the Department or pleaded by the assessee. The existence of a Trust is a fact and not a fiction. We fail to see how the learned Judges were able to come to the conclusion that Ajaib Singh while gifting the shares created one more Trust without any writing and without any objective and appointed the Trustees of the assessee Trust to be the Trustees of the new Trust as well. These assumptions have no basis either in fact or in law. 10. At this stage we may mention that the very learned judges who decided this Reference had held in Wealth Tax Reference No. 444 of 1963 on the file of the High Court of Calcutta that the shares gifted by Ajaib Singh did not continue to be his property. If they are not Ajaib Singhs property, whose property are they? The only answer is that they are the property of the appellant Trust. Those shares cannot float in the mid air. They must be owned by some one. 11. As seen earlier, the appellant is a public Trust. Its objects are charitable objects. Ajaib Singh made over the shares to that Trust for effectuating the very objects of the Trust. He did not stipulate any other object to be attained. The Trustees had accepted the gift. The Trust Deed does not prohibit the Trustees from accepting a new gift. We fail to see what difficulty was there for the Trustees to accept gifts from third parties for the purpose of furthering the objectives of the Trust, so long as the Trust Deed did not prohibit them from receiving such gifts and so long as the gift made did not in any manner impinge on the objects intended to be achieved by the Trust We fail to see why the Trustees could not accept that gift. 12. In our opinion the assumption of the High Court that the Trustees were incompetent to receive the gift made by Ajaib Singh is an erroneous one. On the other hand we agree with the Tribunal that the gift made by Ajaib Singh was a valid gift. The shares gifted are vested in the Trust and therefore the Trust is entitled to the dividends received in respect of those shares. In view of Sec. 4 (3) (i), that dividend is exempt from tax. Hence the appellant is entitled to the refund claimed. | 1[ds]9. It is somewhat difficult to follow the reasoning adopted by the learned Judges of the High Court. Either the gift made by Ajaib Singh and accepted by the Trustees was a valid gift or it was not a valid gift If it was a valid gift, the shares gifted became the property of the Trust. If it was not a valid gift, the shares still continued to be the property of Ajaib Singh. It is nobodys case that there was a Trust within a Trust. No such Trust is put forward either by the Department or pleaded by the assessee. The existence of a Trust is a fact and not a fiction. We fail to see how the learned Judges were able to come to the conclusion that Ajaib Singh while gifting the shares created one more Trust without any writing and without any objective and appointed the Trustees of the assessee Trust to be the Trustees of the new Trust as well. These assumptions have no basis either in fact or in law10. At this stage we may mention that the very learned judges who decided this Reference had held in Wealth Tax Reference No. 444 of 1963 on the file of the High Court of Calcutta that the shares gifted by Ajaib Singh did not continue to be his property. If they are not Ajaib Singhs property, whose property are they? The only answer is that they are the property of the appellant Trust. Those shares cannot float in the mid air. They must be owned by some one11. As seen earlier, the appellant is a public Trust. Its objects are charitable objects. Ajaib Singh made over the shares to that Trust for effectuating the very objects of the Trust. He did not stipulate any other object to be attained. The Trustees had accepted the gift. The Trust Deed does not prohibit the Trustees from accepting a new gift. We fail to see what difficulty was there for the Trustees to accept gifts from third parties for the purpose of furthering the objectives of the Trust, so long as the Trust Deed did not prohibit them from receiving such gifts and so long as the gift made did not in any manner impinge on the objects intended to be achieved by the Trust We fail to see why the Trustees could not accept that gift12. In our opinion the assumption of the High Court that the Trustees were incompetent to receive the gift made by Ajaib Singh is an erroneous one. On the other hand we agree with the Tribunal that the gift made by Ajaib Singh was a valid gift. The shares gifted are vested in the Trust and therefore the Trust is entitled to the dividends received in respect of those shares. In view of Sec. 4 (3) (i), that dividend is exempt from tax. Hence the appellant is entitled to the refund claimed. | 1 | 2,352 | 532 | ### 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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is not in issue before us, now, the same having been held against the Department by the Tribunal. 7. While dealing with the Reference made by the Tribunal, as mentioned earlier, the High Court upheld the validity of the gift made by Ajaib Singh but strangely enough after holding that the gift in question was a valid one, it came to the conclusion that the said gift did not have the effect of augmenting the assessees Trust and therefore the assessee was not entitled to the refund of the tax deducted at the source on the dividend accrued on the shares gifted by Ajaib Singh. To us these findings appear to be somewhat mutually conflicting. If the gift in question was a valid one then the Trust became the owner of the shares gifted. That being so it also became the owner of the dividends received. Hence those dividends will have to be considered as the income of the Trust. 8. The reason which persuaded the learned judges of the High Court for coming to the above conclusion are set out in their judgment at pp. 21 and 22 of the printed paper book. We shall quote that part of the High Courts judgment:"The question for our consideration, however, is whether the gift, as accepted by the trustee, had the effect of augmenting the assessee trust for taxation purposes, or whether the effect of it was that it remained a separate trust in the hands of the trustees of the assessee trust, with liberty to them to apply the income of the subsequent trust for the benefit of the assessee turst. Mr. Bannerje urged that it was not necessary expressly to empower the trust as of a public trust to accept gifts, donations or endowments. That, he submitted was a power inherently vested in them. We have our doubts. Trust is a confidence reposed in a person or persons, with respect to property of which he had or they have legal possession or over which he or they can exercise power to the intent that he or they may hold the property or exercise the power for the benefit of some other person or object. Now, this confidence may not necessarily include in itself the liberty that the trustees would go on accepting donations and try to augment the Trust to such dimensions that the purpose for which the original trust was created may be swamped or modified or qualified. If a settlor wants to invest the trustees with such a power, it is but reasonable to expect that the power should be conferred by the deed which created the trust. The trust that we have to consider does not appear to confer upon the trustees the further power to accept donations gifts or endowments. We, therefore, do not think that the trustees have the liberty or the right to accept further gifts, in the absence of specific authorisation, augment the original trust and then claim the benefit of Section 4 (3) (i) of the Indian Income-tax Act", 9. It is somewhat difficult to follow the reasoning adopted by the learned Judges of the High Court. Either the gift made by Ajaib Singh and accepted by the Trustees was a valid gift or it was not a valid gift If it was a valid gift, the shares gifted became the property of the Trust. If it was not a valid gift, the shares still continued to be the property of Ajaib Singh. It is nobodys case that there was a Trust within a Trust. No such Trust is put forward either by the Department or pleaded by the assessee. The existence of a Trust is a fact and not a fiction. We fail to see how the learned Judges were able to come to the conclusion that Ajaib Singh while gifting the shares created one more Trust without any writing and without any objective and appointed the Trustees of the assessee Trust to be the Trustees of the new Trust as well. These assumptions have no basis either in fact or in law. 10. At this stage we may mention that the very learned judges who decided this Reference had held in Wealth Tax Reference No. 444 of 1963 on the file of the High Court of Calcutta that the shares gifted by Ajaib Singh did not continue to be his property. If they are not Ajaib Singhs property, whose property are they? The only answer is that they are the property of the appellant Trust. Those shares cannot float in the mid air. They must be owned by some one. 11. As seen earlier, the appellant is a public Trust. Its objects are charitable objects. Ajaib Singh made over the shares to that Trust for effectuating the very objects of the Trust. He did not stipulate any other object to be attained. The Trustees had accepted the gift. The Trust Deed does not prohibit the Trustees from accepting a new gift. We fail to see what difficulty was there for the Trustees to accept gifts from third parties for the purpose of furthering the objectives of the Trust, so long as the Trust Deed did not prohibit them from receiving such gifts and so long as the gift made did not in any manner impinge on the objects intended to be achieved by the Trust We fail to see why the Trustees could not accept that gift. 12. In our opinion the assumption of the High Court that the Trustees were incompetent to receive the gift made by Ajaib Singh is an erroneous one. On the other hand we agree with the Tribunal that the gift made by Ajaib Singh was a valid gift. The shares gifted are vested in the Trust and therefore the Trust is entitled to the dividends received in respect of those shares. In view of Sec. 4 (3) (i), that dividend is exempt from tax. Hence the appellant is entitled to the refund claimed.
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9. It is somewhat difficult to follow the reasoning adopted by the learned Judges of the High Court. Either the gift made by Ajaib Singh and accepted by the Trustees was a valid gift or it was not a valid gift If it was a valid gift, the shares gifted became the property of the Trust. If it was not a valid gift, the shares still continued to be the property of Ajaib Singh. It is nobodys case that there was a Trust within a Trust. No such Trust is put forward either by the Department or pleaded by the assessee. The existence of a Trust is a fact and not a fiction. We fail to see how the learned Judges were able to come to the conclusion that Ajaib Singh while gifting the shares created one more Trust without any writing and without any objective and appointed the Trustees of the assessee Trust to be the Trustees of the new Trust as well. These assumptions have no basis either in fact or in law10. At this stage we may mention that the very learned judges who decided this Reference had held in Wealth Tax Reference No. 444 of 1963 on the file of the High Court of Calcutta that the shares gifted by Ajaib Singh did not continue to be his property. If they are not Ajaib Singhs property, whose property are they? The only answer is that they are the property of the appellant Trust. Those shares cannot float in the mid air. They must be owned by some one11. As seen earlier, the appellant is a public Trust. Its objects are charitable objects. Ajaib Singh made over the shares to that Trust for effectuating the very objects of the Trust. He did not stipulate any other object to be attained. The Trustees had accepted the gift. The Trust Deed does not prohibit the Trustees from accepting a new gift. We fail to see what difficulty was there for the Trustees to accept gifts from third parties for the purpose of furthering the objectives of the Trust, so long as the Trust Deed did not prohibit them from receiving such gifts and so long as the gift made did not in any manner impinge on the objects intended to be achieved by the Trust We fail to see why the Trustees could not accept that gift12. In our opinion the assumption of the High Court that the Trustees were incompetent to receive the gift made by Ajaib Singh is an erroneous one. On the other hand we agree with the Tribunal that the gift made by Ajaib Singh was a valid gift. The shares gifted are vested in the Trust and therefore the Trust is entitled to the dividends received in respect of those shares. In view of Sec. 4 (3) (i), that dividend is exempt from tax. Hence the appellant is entitled to the refund claimed.
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Commissioner Of Sales Tax, U.P Vs. Dr. Sukh Deo | Shah, J.1. The Judge (Revision) Sales Tax, U. P., Lucknow, referred the following question to the High Court of Allahabad for opinion:"Whether the preparation of medicines on prescriptions of the applicant amounted to a manufacture of "medicines and pharmaceutical preparations" within the meaning of notification No. S.T. 3504/X dated 10th May, 1956, and whether the applicant was assessable to tax on the turnover of the medicines so dispensed?"The High Court held that the respondent was not manufacturer of "medicines and pharmaceutical preparations within the meaning of the notification. Against the answer recorded by the High Court, the Commissioner of Sales Tax, U.P. has appealed to this Court with special leave.2. The respondent is a medical practitioner and in the performance of his professional duties he examines patients, advises them and prescribed medicines which are issued from his dispensary. The Sales Tax Officer being of the view that the dispensing of medicines, according to the prescriptions issued by the respondent, amounted to manufacture of medicines within the meaning of the notification No. S. T. 3504/X dated May 10, 1956, assessed the respondent to pay tax on a turnover of Rs. 12,943/- for the year 1956-57. The order was confirmed in appeal by the Judge (Appeals) and was further confirmed by the Judge (Revisions) Sales Tax.3. The sole question which falls to be determined in this appeal is whether by virtue of the notification, the respondent is exempt from liability to pay tax.4. Section 3 of the U. P. Sales Tax Act 1948, makes every dealer liable to pay in each assessment year a tax at a certain rate on the turnover. Section 3A provides:"Notwithstanding anything contained in section 3 the State Government may.... declare that the turnover in respect of any goods. . . .. . ..shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify."5. On May 10, 1965, the Governor of Uttar Pradesh issued a notification No. S. T. 3504/X that-"In exercise of the powers conferred by section 3A of the U. P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all the previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that with effect from May 8, 1956, the turnover in respect of medicines and pharmaceutical preparations shall not be liable to tax except(a) in the case of medicines and pharmaceutical preparations imported from outside Uttar Pradesh, at the point of sale by the importer, and(b) in the case of medicines and pharmaceutical preparations manufactured in Uttar Pradesh, at the point of sale by the manufacturer;And the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of * * * *."The respondent is not an importer of medicines and pharmaceutical preparations from outside Uttar Pradesh. That is common ground. The Revenue authorities, however, held that when in his dispensary medicines and pharmaceutical preparations as prescribed by him were mixed, the process of mixing resulted in "manufacture" of medicines by him as a "manufacturer. The expression "manufacture" has in ordinary acceptation a wide connotation: it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a manufacturer is a person by whom or under whose direction and control the articles or materials are made. The notification in the first instance exempts from tax sales of medicines and pharmaceutical preparations. It then proceeds to withdraw the exemption in respect of two classes of sales of medicines and pharmaceutical preparations, (i) sale by an importer of medicines etc. imported from outside the State and (ii) sale by a manufacturer of medicines etc. manufactured in the State. The tax levied in respect of the excepted categories is a single point tax: it may be levied when medicines and pharmaceutical preparations manufactured in the State of Uttar Pradesh are sold by the manufacturer.6. In our judgment when, as prescribed by a medical practitioner, a mixture of different drugs is prepared by the medical practitioner or by his employees specially for the use of a patient in the treatment of an ailment or discomfort diagnosed by the medical practitioner by his professional skill, and which mixture is normally incapable of being passed from hand to hand as a commercial commodity, the medical practitioner supplying the medicines cannot be said to be a manufacturer of the mixture and the mixture cannot be said to be manufactured within the meaning of the notification.Exemption granted by the notification ceases to apply under Clause (a) if the importer of medicines and pharmaceutical preparations manufacture outside the State sells them and under Cl. (b) if the manufacturer of , medicines and pharmaceutical preparations manufactured in Uttar Pradesh sells them. The scheme therefore is to levy sales-tax at one point only, viz, at the point of sale by the importer in respect of medicines imported by him into the State and at the point of sale by the manufacturer of medicines manufactured by him within the State.If preparation of a mixture of drugs as prescribed by a medical practitioner in his own dispensary is not manufacture of medicines or pharmaceutical preparation, the exception clause of the notification will have no application.7. Acceptance of the contention by the Revenue would imply that a medical practitioner supplying to his patients medicines and pharmaceutical praparations separately is not liable to tax: when under his direction they are mixed by his employees for the special use of a patient under his treatment and to achieve a specific purpose, the turnover from the resultant mixture is taxable. In the absence of clearer phraseology, the Court would not in a taxing provision be willing to give that interpretation. | 0[ds]The respondent is not an importer of medicines and pharmaceutical preparations from outside Uttar Pradesh. That is common ground. The Revenue authorities, however, held that when in his dispensary medicines and pharmaceutical preparations as prescribed by him were mixed, the process of mixing resulted in "manufacture" of medicines by him as a "manufacturer. The expression "manufacture" has in ordinary acceptation a wide connotation: it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a manufacturer is a person by whom or under whose direction and control the articles or materials are made. The notification in the first instance exempts from tax sales of medicines and pharmaceutical preparations. It then proceeds to withdraw the exemption in respect of two classes of sales of medicines and pharmaceutical preparations, (i) sale by an importer of medicines etc. imported from outside the State and (ii) sale by a manufacturer of medicines etc. manufactured in the State. The tax levied in respect of the excepted categories is a single point tax: it may be levied when medicines and pharmaceutical preparations manufactured in the State of Uttar Pradesh are sold by the manufacturer.6. In our judgment when, as prescribed by a medical practitioner, a mixture of different drugs is prepared by the medical practitioner or by his employees specially for the use of a patient in the treatment of an ailment or discomfort diagnosed by the medical practitioner by his professional skill, and which mixture is normally incapable of being passed from hand to hand as a commercial commodity, the medical practitioner supplying the medicines cannot be said to be a manufacturer of the mixture and the mixture cannot be said to be manufactured within the meaning of the notification.Exemption granted by the notification ceases to apply under Clause (a) if the importer of medicines and pharmaceutical preparations manufacture outside the State sells them and under Cl. (b) if the manufacturer of , medicines and pharmaceutical preparations manufactured in Uttar Pradesh sells them. The scheme therefore is to levy sales-tax at one point only, viz, at the point of sale by the importer in respect of medicines imported by him into the State and at the point of sale by the manufacturer of medicines manufactured by him within the State.If preparation of a mixture of drugs as prescribed by a medical practitioner in his own dispensary is not manufacture of medicines or pharmaceutical preparation, the exception clause of the notification will have no application.7. Acceptance of the contention by the Revenue would imply that a medical practitioner supplying to his patients medicines and pharmaceutical praparations separately is not liable to tax: when under his direction they are mixed by his employees for the special use of a patient under his treatment and to achieve a specific purpose, the turnover from the resultant mixture is taxable. In the absence of clearer phraseology, the Court would not in a taxing provision be willing to give that interpretation. | 0 | 1,095 | 551 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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Shah, J.1. The Judge (Revision) Sales Tax, U. P., Lucknow, referred the following question to the High Court of Allahabad for opinion:"Whether the preparation of medicines on prescriptions of the applicant amounted to a manufacture of "medicines and pharmaceutical preparations" within the meaning of notification No. S.T. 3504/X dated 10th May, 1956, and whether the applicant was assessable to tax on the turnover of the medicines so dispensed?"The High Court held that the respondent was not manufacturer of "medicines and pharmaceutical preparations within the meaning of the notification. Against the answer recorded by the High Court, the Commissioner of Sales Tax, U.P. has appealed to this Court with special leave.2. The respondent is a medical practitioner and in the performance of his professional duties he examines patients, advises them and prescribed medicines which are issued from his dispensary. The Sales Tax Officer being of the view that the dispensing of medicines, according to the prescriptions issued by the respondent, amounted to manufacture of medicines within the meaning of the notification No. S. T. 3504/X dated May 10, 1956, assessed the respondent to pay tax on a turnover of Rs. 12,943/- for the year 1956-57. The order was confirmed in appeal by the Judge (Appeals) and was further confirmed by the Judge (Revisions) Sales Tax.3. The sole question which falls to be determined in this appeal is whether by virtue of the notification, the respondent is exempt from liability to pay tax.4. Section 3 of the U. P. Sales Tax Act 1948, makes every dealer liable to pay in each assessment year a tax at a certain rate on the turnover. Section 3A provides:"Notwithstanding anything contained in section 3 the State Government may.... declare that the turnover in respect of any goods. . . .. . ..shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify."5. On May 10, 1965, the Governor of Uttar Pradesh issued a notification No. S. T. 3504/X that-"In exercise of the powers conferred by section 3A of the U. P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all the previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that with effect from May 8, 1956, the turnover in respect of medicines and pharmaceutical preparations shall not be liable to tax except(a) in the case of medicines and pharmaceutical preparations imported from outside Uttar Pradesh, at the point of sale by the importer, and(b) in the case of medicines and pharmaceutical preparations manufactured in Uttar Pradesh, at the point of sale by the manufacturer;And the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of * * * *."The respondent is not an importer of medicines and pharmaceutical preparations from outside Uttar Pradesh. That is common ground. The Revenue authorities, however, held that when in his dispensary medicines and pharmaceutical preparations as prescribed by him were mixed, the process of mixing resulted in "manufacture" of medicines by him as a "manufacturer. The expression "manufacture" has in ordinary acceptation a wide connotation: it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a manufacturer is a person by whom or under whose direction and control the articles or materials are made. The notification in the first instance exempts from tax sales of medicines and pharmaceutical preparations. It then proceeds to withdraw the exemption in respect of two classes of sales of medicines and pharmaceutical preparations, (i) sale by an importer of medicines etc. imported from outside the State and (ii) sale by a manufacturer of medicines etc. manufactured in the State. The tax levied in respect of the excepted categories is a single point tax: it may be levied when medicines and pharmaceutical preparations manufactured in the State of Uttar Pradesh are sold by the manufacturer.6. In our judgment when, as prescribed by a medical practitioner, a mixture of different drugs is prepared by the medical practitioner or by his employees specially for the use of a patient in the treatment of an ailment or discomfort diagnosed by the medical practitioner by his professional skill, and which mixture is normally incapable of being passed from hand to hand as a commercial commodity, the medical practitioner supplying the medicines cannot be said to be a manufacturer of the mixture and the mixture cannot be said to be manufactured within the meaning of the notification.Exemption granted by the notification ceases to apply under Clause (a) if the importer of medicines and pharmaceutical preparations manufacture outside the State sells them and under Cl. (b) if the manufacturer of , medicines and pharmaceutical preparations manufactured in Uttar Pradesh sells them. The scheme therefore is to levy sales-tax at one point only, viz, at the point of sale by the importer in respect of medicines imported by him into the State and at the point of sale by the manufacturer of medicines manufactured by him within the State.If preparation of a mixture of drugs as prescribed by a medical practitioner in his own dispensary is not manufacture of medicines or pharmaceutical preparation, the exception clause of the notification will have no application.7. Acceptance of the contention by the Revenue would imply that a medical practitioner supplying to his patients medicines and pharmaceutical praparations separately is not liable to tax: when under his direction they are mixed by his employees for the special use of a patient under his treatment and to achieve a specific purpose, the turnover from the resultant mixture is taxable. In the absence of clearer phraseology, the Court would not in a taxing provision be willing to give that interpretation.
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The respondent is not an importer of medicines and pharmaceutical preparations from outside Uttar Pradesh. That is common ground. The Revenue authorities, however, held that when in his dispensary medicines and pharmaceutical preparations as prescribed by him were mixed, the process of mixing resulted in "manufacture" of medicines by him as a "manufacturer. The expression "manufacture" has in ordinary acceptation a wide connotation: it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a manufacturer is a person by whom or under whose direction and control the articles or materials are made. The notification in the first instance exempts from tax sales of medicines and pharmaceutical preparations. It then proceeds to withdraw the exemption in respect of two classes of sales of medicines and pharmaceutical preparations, (i) sale by an importer of medicines etc. imported from outside the State and (ii) sale by a manufacturer of medicines etc. manufactured in the State. The tax levied in respect of the excepted categories is a single point tax: it may be levied when medicines and pharmaceutical preparations manufactured in the State of Uttar Pradesh are sold by the manufacturer.6. In our judgment when, as prescribed by a medical practitioner, a mixture of different drugs is prepared by the medical practitioner or by his employees specially for the use of a patient in the treatment of an ailment or discomfort diagnosed by the medical practitioner by his professional skill, and which mixture is normally incapable of being passed from hand to hand as a commercial commodity, the medical practitioner supplying the medicines cannot be said to be a manufacturer of the mixture and the mixture cannot be said to be manufactured within the meaning of the notification.Exemption granted by the notification ceases to apply under Clause (a) if the importer of medicines and pharmaceutical preparations manufacture outside the State sells them and under Cl. (b) if the manufacturer of , medicines and pharmaceutical preparations manufactured in Uttar Pradesh sells them. The scheme therefore is to levy sales-tax at one point only, viz, at the point of sale by the importer in respect of medicines imported by him into the State and at the point of sale by the manufacturer of medicines manufactured by him within the State.If preparation of a mixture of drugs as prescribed by a medical practitioner in his own dispensary is not manufacture of medicines or pharmaceutical preparation, the exception clause of the notification will have no application.7. Acceptance of the contention by the Revenue would imply that a medical practitioner supplying to his patients medicines and pharmaceutical praparations separately is not liable to tax: when under his direction they are mixed by his employees for the special use of a patient under his treatment and to achieve a specific purpose, the turnover from the resultant mixture is taxable. In the absence of clearer phraseology, the Court would not in a taxing provision be willing to give that interpretation.
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Firm Gulam Hussain Haji Yakub & Sons Vs. State of Rajasthan | not inclined to accept the conclusion of the High Court that the impugned order can be said to have been passed as a result of the decision of the Board of Regency, since the Board of Regency alone was clothed with the necessary legislative authority. Unless the Board passed the resolution it could not take effect as a law in the State of Sirohi. The approval of the Raj Mata to the resolution passed by the State Council cannot cure the infirmity arising from the fact that the State Council had no legislative power.12. The High Court seems to have taken the view that since the Raj Mata entered into the agreement of merger she can be treated as the de facto. Ruler of the State and as such she was competent to exercise the necessary legislative power to pass the impugned order. We are not inclined to accept this view. It is clear that the document of merger has been signed by the Raj Mata describing herself as the President of the Regency Board; but the High Court thought that since the document had not been signed by the Board itself the Raj Mata could be treated as the de facto Ruler of the State. This view is clearly erroneous. Since the Raj Mata was the President of the Board of Regency it was competent to her to sign the document on behalf of the Board and she purported to sign it as the President of the Board of Regency obviously because she had consulted the Board and it was as a result of the decision of the Board that she proceeded to execute the document and sign it as the Boards President.Therefore, there is no substance in the contention that the Raj Mata alone without the concurrence of the Board could have validly given sanction to the passing of the impugned order. In the result we must hold that the impugned order has not been validly passed and so levy of customs duty can be legally imposed on the appellant in regard to the charcoal which it has exported out of the State of Sirohi.13. It is, however, urged that the duty levied against the appellant for the export of charcoal can be sustained under the provisions of Rajasthan Ordinance (No. 16 of 1949)a. Section 4 (2) of the said Ordinance authorised the Government to issue any revised tariff and in exercise of this power, the Government of Rajasthan has issued a notification No. 211 / SRD on the 10th August 1949, whereby a revised tariff was imposed and it was directed that the duties of customs shall be levied and collected in accordance with the said revised tariff. According to item No. 367 in the said Tariff, export duty on charcoal, was As.-/8/- per maund. The respondents argument was that when Sirohi became a part of Rajasthan the Ordinance in question applied to Sirohi and so the claim for the customs duty made against the appellant was justified under the relevant provisions of the said Ordinance. This Ordinance came into force on the 4th August, 1949.a. The Rajasthan (Regulation of Customs Duties) Ordinance, 1949 (Raj. No. XVI of 1949).14. In our opinion this argument is not well founded. When Ordinance XVI was passed and came into force, it no doubt applied to the whole of Rajasthan as it was then constituted but the State of Sirohi was at the relevant time not a part of Rajasthan and it became a part of Rajasthan as from the 25th January 1950. It appear that the Ministry of States issued a notification on the 24th January 1950, in exercise of the powers conferred on the Government of India by sub sec. (2) of S. 3 of the Extra Provincial Jurisdiction Act 1947 (47 of 1947)band it was as a result of this notification that the Central Government delegated to the Government of the United States of Rajasthan the extra provincial jurisdiction including the power conferred by S. 4 of the said Act to make orders for the effective exercise of that jurisdiction. It is thus clear that until the 25th January 1950 Sirohi was not a part of Rajasthan and was not amenable to the application of the Ordinance in question. The respondent attempted to suggest that as soon as Sirohi became a part of Rajasthan the Ordinance in question applied to it. This argument is obviously faillacious. When Sirohi became a part of Rajasthan the laws applicable to Rajasthan prior to the merger of Sirohi could be made applicable to Sirohi only after an appropriate legislation had been passed in that behalf. In fact in 1953 the Rajasthan Laws (Application to Sirohi) Act (No. III of 1953) was passed to declare that certain Rajasthan Laws applied to Sirohi. Section 3 of this Act provided that the Rajasthan law specified in the Schedule to the Act shall in so far as they relate to any of the masters enumerated in Lists II and III in the Seventh Schedule to the Constitution of India, apply and as born the appointed day be deemed to have applied to Sirohi notwithstanding anything to the contrary contained in the Sirohi Administration Order 1948, or in any other law, or instrument. There is a proviso to this section with which we are not concerned for the purposes of the present appeal. The Ordinance in question 55 not included in the Schedule and so it is clear that the said Ordinance was not intended to apply to Sirohi. It is not suggested that any other Las passed by the Rajasthan State or any other instrument executed in that behalf made the Ordinance in question applicable to Sirohi. Therefore, we are satisfied that the respondent cannot rely upon the relevant provisions of the Rajasthan Ordinance of 1949 to support the demand for customs duty against the appellant for having exported charcoal out of the State of Sirohi.b. See now the Foreign Jurisdiction Act, 1947 (XLVII of 1947.) | 1[ds]7. It appears that in 1940, the Ruler of the Sirohi State brought into existence the Council of State and its functions and duties and its rights were duly notified in the State Gazette. The Council which was designated as the Council of State, Sirohi, was to consist of His Highness as President, the Chief Minister as Vice-President and such other members as His Highness may appoint from time to time. The general working of the Council had to be under the control of the President who, under R. 9, was empowered, if the matter was urgent, to act on behalf of the Council, provided that the Council was duly informed about the action taken by the President as soon as possible. Rule 11 of the notification provided that all cases of the kind enumerated in Schedule I shall be referred to the Council for decision before final orders are passed, save as provided in R. 9. Now, amongst the matters specified in Schedule I is included the topic of any new taxation, or alteration or abolition of taxation. This is entry 7 in the said Schedule. It would thus appear that it was within the competence of the Council to consider the proposal for any new taxation or alteration or abolition under R. 11 and it was for the Ruler to pass final orders in the light of the decision by the Council on that point. Rule 11 makes it clear that though it was competent to the Council to reach a decision on topics covered by entry 7 in Schedule I, it was for the Ruler to pass final orders which would make the decision effective. In other words there can be little doubt that the powers of the Council in respect of the matters covered by Schedule I were no more than advisory, it was always for the Ruler to decide what final orders should be passed in respect of the matters referred to the Council for its decision. That is the nature and scope of the power conferred on theit would be clear that when the impugned order levying a duty on coal was passed on the 31st May, 1948, the constitutional position was that the governance of the State was entrusted to the Board of Regency; and under the Board of Regency was functioning the State Council which had been constituted by the previous Ruler in 1940. It is in the light of this constitutional position that the question about the validity of the impugned levy of customs duty on the appellant has to beorder has been issued by the Secretary of the State Council and does not purport to have been issued by the executive officer of the Board of Regency. The order does not refer to the Board of Regency as all and does not purport to say that Shri Raj Mata Saheba, when she gave her approvals was acting on behalf of the Board. If the order had formally been passed as on behalf of the Board of Regency it would have been open to the respondent to contend that the assumption should be that it was duly passed by the Board of Regency and had been promulgated according to the rules of business prescribed by the said Board. But since the order does not purport to have been issued either on behalf of the Board of Regency or on behalf of Shri Raj Mata Saheba acting for the Board of Regency, it is necessary to enquire whether, in fact, the Board of Regency has approved of this order, and it appears that so far as this enquiry is concerned, the respondent has placed no material before the Court which would have assisted it in coming to the conclusion in favour of the validity of therespondents case appears to be that the Raj Mata being the President of the Board of Regency could act on her own in matters relating to the government of the State either executively or legislatively and that it was for her to decide whether she should consult the other members of the Board or not. The case set out by the respondent is not that the Raj Mata as the President of the Board always consulted the Board before the acted on its behalf. On the contrary, the plea taken seems to suggest that the Raj Mata was not bound to consult the Board and could have acted independently of the Board in passing orders either executive or legislative. That being the plea, it is difficult for us to accept the argument that the approval of the Raj Mata to which the impugned order makes a reference, can be safely taken to be the approval of the Raj Mata after she had consulted the Board in that behalf. There is no doubt that as a result of the Sirohi Regency Act, the governance of the State was left in the hands of the Board of Regency and it was the Board of Regency alone acting collectively that could legislate or pass executive orders. If the Raj Mata took the view that she could act on her own without consulting the Board, that was clearly inconsistent with the material provisions of the Act.Therefore, we are not inclined to accept the conclusion of the High Court that the impugned order can be said to have been passed as a result of the decision of the Board of Regency, since the Board of Regency alone was clothed with the necessary legislative authority. Unless the Board passed the resolution it could not take effect as a law in the State of Sirohi. The approval of the Raj Mata to the resolution passed by the State Council cannot cure the infirmity arising from the fact that the State Council had no legislativeare not inclined to accept this view. It is clear that the document of merger has been signed by the Raj Mata describing herself as the President of the Regency Board; but the High Court thought that since the document had not been signed by the Board itself the Raj Mata could be treated as the de facto Ruler of the State. This view is clearly erroneous. Since the Raj Mata was the President of the Board of Regency it was competent to her to sign the document on behalf of the Board and she purported to sign it as the President of the Board of Regency obviously because she had consulted the Board and it was as a result of the decision of the Board that she proceeded to execute the document and sign it as the Boards President.Therefore, there is no substance in the contention that the Raj Mata alone without the concurrence of the Board could have validly given sanction to the passing of the impugned order. In the result we must hold that the impugned order has not been validly passed and so levy of customs duty can be legally imposed on the appellant in regard to the charcoal which it has exported out of the State of Sirohi.In our opinion this argument is not well founded. When Ordinance XVI was passed and came into force, it no doubt applied to the whole of Rajasthan as it was then constituted but the State of Sirohi was at the relevant time not a part of Rajasthan and it became a part of Rajasthan as from the 25th January 1950. It appear that the Ministry of States issued a notification on the 24th January 1950, in exercise of the powers conferred on the Government of India by sub sec. (2) of S. 3 of the Extra Provincial Jurisdiction Act 1947 (47 of 1947)band it was as a result of this notification that the Central Government delegated to the Government of the United States of Rajasthan the extra provincial jurisdiction including the power conferred by S. 4 of the said Act to make orders for the effective exercise of that jurisdiction. It is thus clear that until the 25th January 1950 Sirohi was not a part of Rajasthan and was not amenable to the application of the Ordinance inargument is obviously faillacious. When Sirohi became a part of Rajasthan the laws applicable to Rajasthan prior to the merger of Sirohi could be made applicable to Sirohi only after an appropriate legislation had been passed in that behalf. In fact in 1953 the Rajasthan Laws (Application to Sirohi) Act (No. III of 1953) was passed to declare that certain Rajasthan Laws applied to Sirohi. Section 3 of this Act provided that the Rajasthan law specified in the Schedule to the Act shall in so far as they relate to any of the masters enumerated in Lists II and III in the Seventh Schedule to the Constitution of India, apply and as born the appointed day be deemed to have applied to Sirohi notwithstanding anything to the contrary contained in the Sirohi Administration Order 1948, or in any other law, or instrument. There is a proviso to this section with which we are not concerned for the purposes of the present appeal. The Ordinance in question 55 not included in the Schedule and so it is clear that the said Ordinance was not intended to apply to Sirohi. It is not suggested that any other Las passed by the Rajasthan State or any other instrument executed in that behalf made the Ordinance in question applicable to Sirohi. Therefore, we are satisfied that the respondent cannot rely upon the relevant provisions of the Rajasthan Ordinance of 1949 to support the demand for customs duty against the appellant for having exported charcoal out of the State of Sirohi. | 1 | 4,024 | 1,705 | ### Instruction:
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not inclined to accept the conclusion of the High Court that the impugned order can be said to have been passed as a result of the decision of the Board of Regency, since the Board of Regency alone was clothed with the necessary legislative authority. Unless the Board passed the resolution it could not take effect as a law in the State of Sirohi. The approval of the Raj Mata to the resolution passed by the State Council cannot cure the infirmity arising from the fact that the State Council had no legislative power.12. The High Court seems to have taken the view that since the Raj Mata entered into the agreement of merger she can be treated as the de facto. Ruler of the State and as such she was competent to exercise the necessary legislative power to pass the impugned order. We are not inclined to accept this view. It is clear that the document of merger has been signed by the Raj Mata describing herself as the President of the Regency Board; but the High Court thought that since the document had not been signed by the Board itself the Raj Mata could be treated as the de facto Ruler of the State. This view is clearly erroneous. Since the Raj Mata was the President of the Board of Regency it was competent to her to sign the document on behalf of the Board and she purported to sign it as the President of the Board of Regency obviously because she had consulted the Board and it was as a result of the decision of the Board that she proceeded to execute the document and sign it as the Boards President.Therefore, there is no substance in the contention that the Raj Mata alone without the concurrence of the Board could have validly given sanction to the passing of the impugned order. In the result we must hold that the impugned order has not been validly passed and so levy of customs duty can be legally imposed on the appellant in regard to the charcoal which it has exported out of the State of Sirohi.13. It is, however, urged that the duty levied against the appellant for the export of charcoal can be sustained under the provisions of Rajasthan Ordinance (No. 16 of 1949)a. Section 4 (2) of the said Ordinance authorised the Government to issue any revised tariff and in exercise of this power, the Government of Rajasthan has issued a notification No. 211 / SRD on the 10th August 1949, whereby a revised tariff was imposed and it was directed that the duties of customs shall be levied and collected in accordance with the said revised tariff. According to item No. 367 in the said Tariff, export duty on charcoal, was As.-/8/- per maund. The respondents argument was that when Sirohi became a part of Rajasthan the Ordinance in question applied to Sirohi and so the claim for the customs duty made against the appellant was justified under the relevant provisions of the said Ordinance. This Ordinance came into force on the 4th August, 1949.a. The Rajasthan (Regulation of Customs Duties) Ordinance, 1949 (Raj. No. XVI of 1949).14. In our opinion this argument is not well founded. When Ordinance XVI was passed and came into force, it no doubt applied to the whole of Rajasthan as it was then constituted but the State of Sirohi was at the relevant time not a part of Rajasthan and it became a part of Rajasthan as from the 25th January 1950. It appear that the Ministry of States issued a notification on the 24th January 1950, in exercise of the powers conferred on the Government of India by sub sec. (2) of S. 3 of the Extra Provincial Jurisdiction Act 1947 (47 of 1947)band it was as a result of this notification that the Central Government delegated to the Government of the United States of Rajasthan the extra provincial jurisdiction including the power conferred by S. 4 of the said Act to make orders for the effective exercise of that jurisdiction. It is thus clear that until the 25th January 1950 Sirohi was not a part of Rajasthan and was not amenable to the application of the Ordinance in question. The respondent attempted to suggest that as soon as Sirohi became a part of Rajasthan the Ordinance in question applied to it. This argument is obviously faillacious. When Sirohi became a part of Rajasthan the laws applicable to Rajasthan prior to the merger of Sirohi could be made applicable to Sirohi only after an appropriate legislation had been passed in that behalf. In fact in 1953 the Rajasthan Laws (Application to Sirohi) Act (No. III of 1953) was passed to declare that certain Rajasthan Laws applied to Sirohi. Section 3 of this Act provided that the Rajasthan law specified in the Schedule to the Act shall in so far as they relate to any of the masters enumerated in Lists II and III in the Seventh Schedule to the Constitution of India, apply and as born the appointed day be deemed to have applied to Sirohi notwithstanding anything to the contrary contained in the Sirohi Administration Order 1948, or in any other law, or instrument. There is a proviso to this section with which we are not concerned for the purposes of the present appeal. The Ordinance in question 55 not included in the Schedule and so it is clear that the said Ordinance was not intended to apply to Sirohi. It is not suggested that any other Las passed by the Rajasthan State or any other instrument executed in that behalf made the Ordinance in question applicable to Sirohi. Therefore, we are satisfied that the respondent cannot rely upon the relevant provisions of the Rajasthan Ordinance of 1949 to support the demand for customs duty against the appellant for having exported charcoal out of the State of Sirohi.b. See now the Foreign Jurisdiction Act, 1947 (XLVII of 1947.)
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before the Court which would have assisted it in coming to the conclusion in favour of the validity of therespondents case appears to be that the Raj Mata being the President of the Board of Regency could act on her own in matters relating to the government of the State either executively or legislatively and that it was for her to decide whether she should consult the other members of the Board or not. The case set out by the respondent is not that the Raj Mata as the President of the Board always consulted the Board before the acted on its behalf. On the contrary, the plea taken seems to suggest that the Raj Mata was not bound to consult the Board and could have acted independently of the Board in passing orders either executive or legislative. That being the plea, it is difficult for us to accept the argument that the approval of the Raj Mata to which the impugned order makes a reference, can be safely taken to be the approval of the Raj Mata after she had consulted the Board in that behalf. There is no doubt that as a result of the Sirohi Regency Act, the governance of the State was left in the hands of the Board of Regency and it was the Board of Regency alone acting collectively that could legislate or pass executive orders. If the Raj Mata took the view that she could act on her own without consulting the Board, that was clearly inconsistent with the material provisions of the Act.Therefore, we are not inclined to accept the conclusion of the High Court that the impugned order can be said to have been passed as a result of the decision of the Board of Regency, since the Board of Regency alone was clothed with the necessary legislative authority. Unless the Board passed the resolution it could not take effect as a law in the State of Sirohi. The approval of the Raj Mata to the resolution passed by the State Council cannot cure the infirmity arising from the fact that the State Council had no legislativeare not inclined to accept this view. It is clear that the document of merger has been signed by the Raj Mata describing herself as the President of the Regency Board; but the High Court thought that since the document had not been signed by the Board itself the Raj Mata could be treated as the de facto Ruler of the State. This view is clearly erroneous. Since the Raj Mata was the President of the Board of Regency it was competent to her to sign the document on behalf of the Board and she purported to sign it as the President of the Board of Regency obviously because she had consulted the Board and it was as a result of the decision of the Board that she proceeded to execute the document and sign it as the Boards President.Therefore, there is no substance in the contention that the Raj Mata alone without the concurrence of the Board could have validly given sanction to the passing of the impugned order. In the result we must hold that the impugned order has not been validly passed and so levy of customs duty can be legally imposed on the appellant in regard to the charcoal which it has exported out of the State of Sirohi.In our opinion this argument is not well founded. When Ordinance XVI was passed and came into force, it no doubt applied to the whole of Rajasthan as it was then constituted but the State of Sirohi was at the relevant time not a part of Rajasthan and it became a part of Rajasthan as from the 25th January 1950. It appear that the Ministry of States issued a notification on the 24th January 1950, in exercise of the powers conferred on the Government of India by sub sec. (2) of S. 3 of the Extra Provincial Jurisdiction Act 1947 (47 of 1947)band it was as a result of this notification that the Central Government delegated to the Government of the United States of Rajasthan the extra provincial jurisdiction including the power conferred by S. 4 of the said Act to make orders for the effective exercise of that jurisdiction. It is thus clear that until the 25th January 1950 Sirohi was not a part of Rajasthan and was not amenable to the application of the Ordinance inargument is obviously faillacious. When Sirohi became a part of Rajasthan the laws applicable to Rajasthan prior to the merger of Sirohi could be made applicable to Sirohi only after an appropriate legislation had been passed in that behalf. In fact in 1953 the Rajasthan Laws (Application to Sirohi) Act (No. III of 1953) was passed to declare that certain Rajasthan Laws applied to Sirohi. Section 3 of this Act provided that the Rajasthan law specified in the Schedule to the Act shall in so far as they relate to any of the masters enumerated in Lists II and III in the Seventh Schedule to the Constitution of India, apply and as born the appointed day be deemed to have applied to Sirohi notwithstanding anything to the contrary contained in the Sirohi Administration Order 1948, or in any other law, or instrument. There is a proviso to this section with which we are not concerned for the purposes of the present appeal. The Ordinance in question 55 not included in the Schedule and so it is clear that the said Ordinance was not intended to apply to Sirohi. It is not suggested that any other Las passed by the Rajasthan State or any other instrument executed in that behalf made the Ordinance in question applicable to Sirohi. Therefore, we are satisfied that the respondent cannot rely upon the relevant provisions of the Rajasthan Ordinance of 1949 to support the demand for customs duty against the appellant for having exported charcoal out of the State of Sirohi.
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Konark Investments Limited and Others Vs. Union of India | 1. Leave granted. 2. On 11-6-1984 a company application (Company Application No. 99 of 1984) was presented before the High Court at Calcutta under Sections 391 and 393 of the Companies Act, 1956, for convening meetings to approve a Scheme of Arrangement between the appellant and Hari Brothers Pvt. Ltd., as also three subsidiaries of the appellant. The High Court directed meetings to be called and, based on the result thereof approving the proposed Scheme, a company petition (Company Petition No. 344 of 1984) was filed by the appellant in the High Court on 3-8-1984 for obtaining its sanction thereto. On 14-2-1985 the learned Company Judge sanctioned the Scheme. The order passed by him does not indicate that there was any argument on behalf of the respondent opposing the sanction of the proposed Scheme on the ground that it was fraudulently devised to enable the evasion of taxes 3. On 3-5-1985 the respondent filed an appeal against the order sanctioning the Scheme. An application for stay thereof was refused. There being no stay, the High Court, on 13-8-1985, passed an order dissolving, without winding up, the transferor-Company, Hari Brothers Pvt. Ltd. A copy of the order of dissolution was filed with the Registrar of Companies on 8-9-1985. Pursuant to the dissolution, shares of the appellant were allotted to the erstwhile shareholders of the transferor-Company, the income-tax returns were merged, the transferor-Companys property was sold, and so on 4. On 5-5-1989 the impugned order was passed by a Division Bench of the High Court. It refers to the affidavit in opposition to the Scheme filed by the respondent before the learned Company Judge wherein it was stated that the whole purpose of obtaining the sanction of the Scheme was to avoid the relevant taxes payable under the various provisions of law. The Division Bench observed that the learned Company Judge should not have disposed of the matter in a summary manner and without considering the contentions raised by the respondent authorities in their affidavits. The Division Bench said that where the whole purpose of the petitioner was to avoid taxes that should have been taken into consideration by the learned court below and taking into consideration such fact and considering that the application was not bona fide the learned court below should not have accorded the sanction as proposed by the petitioner. Under these circumstances, the impugned order is set aside and the appeal is allowed * 5. The contention of the respondent in its affidavit in opposition to the Scheme was to use the words of the Division Bench to avoid the relevant taxes payable under the various provisions of law. It is very difficult to appreciate how the learned Company Judge could have considered such a contention if such contention was not canvassed at the Bar on behalf of the respondent and no factual material in support thereof was laid before him. That this contention was not canvassed is quite clear from the fact that the learned Company Judges order makes no mention of it; nor, indeed, does the Division Bench order suggest that there was an argument before him which the learned Company Judge ignored 6. It is remarkable that the Division Bench came to the conclusion that the whole purpose of the appellant was to avoid taxes when there is no material discussed or even referred to in its order based whereon such a conclusion could be reached 7. We think that the least that should have been done by the Division Bench was to remand the matter to the learned Company Judge for fresh consideration. It is not as if the Division Bench was not made aware of the fact that the order that it had passed would cause great hardship to the shareholders and others. The Division Bench recorded this, but brushed it aside on the basis that it was not a ground for not setting aside the order of the learned Company Judge which was passed without proper application of mind. The Division Bench, sitting in appeal over that order, could not but have been mindful of the fact that erstwhile shareholders of the transferor-Company had been allotted shares of the appellant pursuant to the sanction of the Scheme and that they would have sold those shares in the ordinary course to third parties, who would be the sufferers 8. Learned counsel for the respondent submitted that we should send the matter back to the learned Company Judge for being heard afresh. We are disinclined to do so for the amalgamation has taken effect long back and third-party rights have been created. The respondent should have pressed the case it made out in the affidavit before the learned Company Judge; that was the appropriate time to do so | 1[ds]8. Learned counsel for the respondent submitted that we should send the matter back to the learned Company Judge for being heard afresh. We are disinclined to do so for the amalgamation has taken effect long back andy rights have been created. The respondent should have pressed the case it made out in the affidavit before the learned Company Judge; that was the appropriate time to do so | 1 | 852 | 76 | ### 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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1. Leave granted. 2. On 11-6-1984 a company application (Company Application No. 99 of 1984) was presented before the High Court at Calcutta under Sections 391 and 393 of the Companies Act, 1956, for convening meetings to approve a Scheme of Arrangement between the appellant and Hari Brothers Pvt. Ltd., as also three subsidiaries of the appellant. The High Court directed meetings to be called and, based on the result thereof approving the proposed Scheme, a company petition (Company Petition No. 344 of 1984) was filed by the appellant in the High Court on 3-8-1984 for obtaining its sanction thereto. On 14-2-1985 the learned Company Judge sanctioned the Scheme. The order passed by him does not indicate that there was any argument on behalf of the respondent opposing the sanction of the proposed Scheme on the ground that it was fraudulently devised to enable the evasion of taxes 3. On 3-5-1985 the respondent filed an appeal against the order sanctioning the Scheme. An application for stay thereof was refused. There being no stay, the High Court, on 13-8-1985, passed an order dissolving, without winding up, the transferor-Company, Hari Brothers Pvt. Ltd. A copy of the order of dissolution was filed with the Registrar of Companies on 8-9-1985. Pursuant to the dissolution, shares of the appellant were allotted to the erstwhile shareholders of the transferor-Company, the income-tax returns were merged, the transferor-Companys property was sold, and so on 4. On 5-5-1989 the impugned order was passed by a Division Bench of the High Court. It refers to the affidavit in opposition to the Scheme filed by the respondent before the learned Company Judge wherein it was stated that the whole purpose of obtaining the sanction of the Scheme was to avoid the relevant taxes payable under the various provisions of law. The Division Bench observed that the learned Company Judge should not have disposed of the matter in a summary manner and without considering the contentions raised by the respondent authorities in their affidavits. The Division Bench said that where the whole purpose of the petitioner was to avoid taxes that should have been taken into consideration by the learned court below and taking into consideration such fact and considering that the application was not bona fide the learned court below should not have accorded the sanction as proposed by the petitioner. Under these circumstances, the impugned order is set aside and the appeal is allowed * 5. The contention of the respondent in its affidavit in opposition to the Scheme was to use the words of the Division Bench to avoid the relevant taxes payable under the various provisions of law. It is very difficult to appreciate how the learned Company Judge could have considered such a contention if such contention was not canvassed at the Bar on behalf of the respondent and no factual material in support thereof was laid before him. That this contention was not canvassed is quite clear from the fact that the learned Company Judges order makes no mention of it; nor, indeed, does the Division Bench order suggest that there was an argument before him which the learned Company Judge ignored 6. It is remarkable that the Division Bench came to the conclusion that the whole purpose of the appellant was to avoid taxes when there is no material discussed or even referred to in its order based whereon such a conclusion could be reached 7. We think that the least that should have been done by the Division Bench was to remand the matter to the learned Company Judge for fresh consideration. It is not as if the Division Bench was not made aware of the fact that the order that it had passed would cause great hardship to the shareholders and others. The Division Bench recorded this, but brushed it aside on the basis that it was not a ground for not setting aside the order of the learned Company Judge which was passed without proper application of mind. The Division Bench, sitting in appeal over that order, could not but have been mindful of the fact that erstwhile shareholders of the transferor-Company had been allotted shares of the appellant pursuant to the sanction of the Scheme and that they would have sold those shares in the ordinary course to third parties, who would be the sufferers 8. Learned counsel for the respondent submitted that we should send the matter back to the learned Company Judge for being heard afresh. We are disinclined to do so for the amalgamation has taken effect long back and third-party rights have been created. The respondent should have pressed the case it made out in the affidavit before the learned Company Judge; that was the appropriate time to do so
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8. Learned counsel for the respondent submitted that we should send the matter back to the learned Company Judge for being heard afresh. We are disinclined to do so for the amalgamation has taken effect long back andy rights have been created. The respondent should have pressed the case it made out in the affidavit before the learned Company Judge; that was the appropriate time to do so
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Prabhat Kiran Maithani and Others Vs. Union of India and Another | the Central Pay Commission. Furthermore, learned counsel has invited our attention to the case of Purshottam Lal and Ors. Vs. Union of India and another [1973 (1) S.C.C. 651] whereupon a Writ Petition by Computers, they were shown as having been given identical scales of pay with the Research Assistants Grade II. This decision however, does not deal with any controversy as to the correct classification of computers in comparison with Research Assistants Grade II. All we need say is that this case deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973. Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical. Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that even though they belong to different classes, their scales of pay may be identical. We are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission. This Court cannot satisfactorily decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973. This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.Learned Counsel for the petitioners tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards. It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Computers at all. Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers. It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and functions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions. Indeed, everyone working in a research institute could, in some way, be said to be assisting in research. We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.The learned Solicitor General has invited our attention to the case of Union of India v. G.R. Prabhavalkar &Ors. reported in 1973 (3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuing jurisdiction.2. The learned counsel for the petitioners has tried to take us at some length into the material on which he assails the view taken by the opposite parties. We are unable to agree that, on the material placed before us, we can accept the petitioners interpretation of facts to which our attention was drawn. We are unable to consider other material also to which our attention was attempted to be draw n because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.3. Finally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us to give him any permission to do that. We may how ever observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future. We want to make it clear that the question whether th ere is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down. Moreover , a discrimination, which involves the invocation of Article 14, is not necessary covered by Article 16. We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately. The validity of that classification cannot, we think, be displaced by the kind of evidence relied upon on behalf of the petitioners. And, until that classification is shown to be unjustified, no question of violating Article 16 can arise. | 0[ds]All we need say is that this case deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973. Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical. Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that even though they belong to different classes, their scales of pay may be identical. We are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission. This Court cannot satisfactorily decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973. This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.Learned Counsel for the petitioners tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards. It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Computers at all. Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers. It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and functions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions. Indeed, everyone working in a research institute could, in some way, be said to be assisting in research. We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.The learned Solicitor General has invited our attention to the case of Union of India v. G.R. Prabhavalkar &Ors. reported in 1973 (3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuinglearned counsel for the petitioners has tried to take us at some length into the material on which he assails the view taken by the opposite parties. We are unable to agree that, on the material placed before us, we can accept the petitioners interpretation of facts to which our attention was drawn. We are unable to consider other material also to which our attention was attempted to be draw n because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed beforelearned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us to give him any permission to do that. We may how ever observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future. We want to make it clear that the question whether th ere is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down. Moreover , a discrimination, which involves the invocation of Article 14, is not necessary covered by Article 16. We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately. The validity of that classification cannot, we think, be displaced by the kind of evidence relied upon on behalf of the petitioners. And, until that classification is shown to be unjustified, no question of violating Article 16 can arise | 0 | 1,222 | 999 | ### Instruction:
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the Central Pay Commission. Furthermore, learned counsel has invited our attention to the case of Purshottam Lal and Ors. Vs. Union of India and another [1973 (1) S.C.C. 651] whereupon a Writ Petition by Computers, they were shown as having been given identical scales of pay with the Research Assistants Grade II. This decision however, does not deal with any controversy as to the correct classification of computers in comparison with Research Assistants Grade II. All we need say is that this case deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973. Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical. Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that even though they belong to different classes, their scales of pay may be identical. We are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission. This Court cannot satisfactorily decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973. This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.Learned Counsel for the petitioners tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards. It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Computers at all. Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers. It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and functions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions. Indeed, everyone working in a research institute could, in some way, be said to be assisting in research. We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.The learned Solicitor General has invited our attention to the case of Union of India v. G.R. Prabhavalkar &Ors. reported in 1973 (3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuing jurisdiction.2. The learned counsel for the petitioners has tried to take us at some length into the material on which he assails the view taken by the opposite parties. We are unable to agree that, on the material placed before us, we can accept the petitioners interpretation of facts to which our attention was drawn. We are unable to consider other material also to which our attention was attempted to be draw n because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.3. Finally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us to give him any permission to do that. We may how ever observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future. We want to make it clear that the question whether th ere is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down. Moreover , a discrimination, which involves the invocation of Article 14, is not necessary covered by Article 16. We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately. The validity of that classification cannot, we think, be displaced by the kind of evidence relied upon on behalf of the petitioners. And, until that classification is shown to be unjustified, no question of violating Article 16 can arise.
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All we need say is that this case deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973. Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical. Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that even though they belong to different classes, their scales of pay may be identical. We are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission. This Court cannot satisfactorily decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973. This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.Learned Counsel for the petitioners tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards. It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Computers at all. Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers. It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and functions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions. Indeed, everyone working in a research institute could, in some way, be said to be assisting in research. We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.The learned Solicitor General has invited our attention to the case of Union of India v. G.R. Prabhavalkar &Ors. reported in 1973 (3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuinglearned counsel for the petitioners has tried to take us at some length into the material on which he assails the view taken by the opposite parties. We are unable to agree that, on the material placed before us, we can accept the petitioners interpretation of facts to which our attention was drawn. We are unable to consider other material also to which our attention was attempted to be draw n because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed beforelearned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us to give him any permission to do that. We may how ever observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future. We want to make it clear that the question whether th ere is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down. Moreover , a discrimination, which involves the invocation of Article 14, is not necessary covered by Article 16. We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately. The validity of that classification cannot, we think, be displaced by the kind of evidence relied upon on behalf of the petitioners. And, until that classification is shown to be unjustified, no question of violating Article 16 can arise
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Justice Ripusudan Dayal (Retd.) & Others Vs. State of M.P. & Others | restraining any inquiry or investigation against the Secretary or the Deputy Secretary of the Legislative Assembly or for that matter against the member of the Legislative Assembly or a minister in the executive government nor does the Parliament or the Legislative Assembly of the State or its members. The laws apply equally and there is no privilege which prohibits action of registration of a case by an authority which has been empowered by the legislature to investigate the cases. Simply because the officers belong to the office of the Hon’ble Speaker of the Legislative Assembly, the provisions of the Act do not cease to apply to them. The law does not make any differentiation and applies to all with equal vigour. As such, the initiation of action does not and cannot amount to a breach of privilege of the Legislative Assembly, which has itself conferred powers in the form of a Statute to eradicate the menace of corruption. 58) The petitioners cannot, while acting under the said statute, be said to have lowered the dignity of the very Assembly which has conferred the power upon the petitioners. The authority to act has been conferred upon the petitioners under the Act by the Legislative Assembly itself and, therefore, the action taken by the petitioners under the said Act cannot constitute a breach of privilege of that Legislative Assembly. 59) By carrying out investigation on a complaint received, the petitioners merely performed their statutory duty and did not in any way affect the privileges which were being enjoyed by the Assembly and its members. The action of the petitioners did not interfere in the working of the House and as such there are no grounds for issuing a notice for the breach of Privilege of the Legislative Assembly. 60) Also, in terms of the provisions of Section 11(2) of the Lokayukt Act, any proceeding before the Lokayukt shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and as per Section 11(3), the Lokayukt is deemed to be a court within the meaning of Contempt of Courts Act, 1971. The petitioners have merely made inquiry within the scope of the provisions of the Act and have not done anything against the Speaker personally. The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt and his officers were entitled and duty bound to carry out investigation and inquiry into the allegations made in the complaint filed before them and merely because the petitioners, after scrutinizing the relevant records, found the allegations prima facie proved, justifying detailed investigation by the Special Police Establishment under the Prevention of Corruption Act, and the performance of duty by the petitioners in no way affects any of the privileges even remotely enjoyed by the Assembly or its Members. 61) In the present matter, the petitioners have not made any inquiry against any member of the Legislative Assembly or the Speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of Legislative Assembly were completely uncalled for, illegal and unconstitutional. 62) Further, the allegations made in the complaint show that while dealing with the first complaint (E.R. 127/05), the Lokayukt found that there was no material to proceed further and closed that matter since the allegations alleged were not established. While inquiring into the second complaint since the Lokayukt found that the allegations made in the complaint were prima facie proved, SPE was directed to proceed further in accordance with law. 63) On behalf of the petitioners, it is pointed out that the facts and circumstances in the present matter show that complaints have been filed by the Members not in their interest but for the benefit of the persons involved who all are public servants. It is also pointed out that the action of breach of privilege has been instituted against the petitioners since the officers, against whom the investigation has been launched, belong to the Vidhan Sabha Secretariat. 64) We are of the view that the action being investigated by the petitioners has nothing to do with the proceedings of the House and as such the said action cannot constitute any breach of privilege of the House or its members. 65) It is made clear that privileges are available only insofar as they are necessary in order that House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act, and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Special Police Establishment is for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation. 66) In the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of any privilege. 67) Under the provisions of Section 39(1)(iii) of the Code of Criminal Procedure, 1973, every person who is aware of the commission of an offence under the Prevention of Corruption Act is duty bound to give an information available with him to the police. In other words, every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence.68) In the light of the above discussion and conclusion, the | 1[ds]The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and within the meaning of Section 2 (c) of the Prevention of Corruption Act, 1988 and, therefore, the Lokayukt and his officers are entitled and duty bound to make inquiry and investigation into the allegations made in any complaint filed beforeThe law applies equally and there is no privilege which prohibits action of registration of a case by an authority that has been empowered by the legislature to investigate the cases relating to corruption and bring the offenders to book. Simply because the officers happen to belong to the office of theSpeaker of the Legislative Assembly, the provisions of the Lokayukt Act do not cease to apply to them. The law does not make any differentiation and applies to all with equal vigour. As such, the initiation of action does not and cannot amount to a breach of privilege of the Legislative Assembly, which has itself conferred powers in the form of a statute to eradicate the menace of corruption. It is, thus, clear that, no privilege is available to the Legislative Assembly to give immunity to them against the operation ofIn the present matter, the petitioners have not made any inquiry even against the members of the Legislative Assembly or the Speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of the Legislative Assembly were completely uncalled for, illegal and unconstitutional. The Speaker has no jurisdiction to entertain any such complaint, which is not evenThus, it is amply clear that the Assembly does not enjoy any privilege of a nature that may have the effect of restraining any inquiry or investigation against the Secretary or the Deputy Secretary of the LegislativeThus, from the above, it is clear that neither did the House of Commons enjoy any privilege, at the time of the commencement of the Constitution, of a nature that may have the effect of restraining any inquiry or investigation against the Secretary or the Deputy Secretary of the Legislative Assembly or for that matter against the member of the Legislative Assembly or a minister in the executive government nor does the Parliament or the Legislative Assembly of the State or its members. The laws apply equally and there is no privilege which prohibits action of registration of a case by an authority which has been empowered by the legislature to investigate the cases. Simply because the officers belong to the office of theSpeaker of the Legislative Assembly, the provisions of the Act do not cease to apply to them. The law does not make any differentiation and applies to all with equal vigour. As such, the initiation of action does not and cannot amount to a breach of privilege of the Legislative Assembly, which has itself conferred powers in the form of a Statute to eradicate the menace ofThe petitioners cannot, while acting under the said statute, be said to have lowered the dignity of the very Assembly which has conferred the power upon the petitioners. The authority to act has been conferred upon the petitioners under the Act by the Legislative Assembly itself and, therefore, the action taken by the petitioners under the said Act cannot constitute a breach of privilege of that LegislativeBy carrying out investigation on a complaint received, the petitioners merely performed their statutory duty and did not in any way affect the privileges which were being enjoyed by the Assembly and its members. The action of the petitioners did not interfere in the working of the House and as such there are no grounds for issuing a notice for the breach of Privilege of the LegislativeAlso, in terms of the provisions of Section 11(2) of the Lokayukt Act, any proceeding before the Lokayukt shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and as per Section 11(3), the Lokayukt is deemed to be a court within the meaning of Contempt of Courts Act, 1971. The petitioners have merely made inquiry within the scope of the provisions of the Act and have not done anything against the Speaker personally. The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt and his officers were entitled and duty bound to carry out investigation and inquiry into the allegations made in the complaint filed before them and merely because the petitioners, after scrutinizing the relevant records, found the allegations prima facie proved, justifying detailed investigation by the Special Police Establishment under the Prevention of Corruption Act, and the performance of duty by the petitioners in no way affects any of the privileges even remotely enjoyed by the Assembly or itsIn the present matter, the petitioners have not made any inquiry against any member of the Legislative Assembly or the Speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of Legislative Assembly were completely uncalled for, illegal andFurther, the allegations made in the complaint show that while dealing with the first complaint (E.R. 127/05), the Lokayukt found that there was no material to proceed further and closed that matter since the allegations alleged were not established. While inquiring into the second complaint since the Lokayukt found that the allegations made in the complaint were prima facie proved, SPE was directed to proceed further in accordance withOn behalf of the petitioners, it is pointed out that the facts and circumstances in the present matter show that complaints have been filed by the Members not in their interest but for the benefit of the persons involved who all are public servants. It is also pointed out that the action of breach of privilege has been instituted against the petitioners since the officers, against whom the investigation has been launched, belong to the Vidhan SabhaWe are of the view that the action being investigated by the petitioners has nothing to do with the proceedings of the House and as such the said action cannot constitute any breach of privilege of the House or itsIt is made clear that privileges are available only insofar as they are necessary in order that House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act, and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Specialis for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without anyIn the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of anyUnder the provisions of Section 39(1)(iii) of the Code of Criminal Procedure, 1973, every person who is aware of the commission of an offence under the Prevention of Corruption Act is duty bound to give an information available with him to the police. In other words, every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence. | 1 | 12,826 | 1,411 | ### 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:
restraining any inquiry or investigation against the Secretary or the Deputy Secretary of the Legislative Assembly or for that matter against the member of the Legislative Assembly or a minister in the executive government nor does the Parliament or the Legislative Assembly of the State or its members. The laws apply equally and there is no privilege which prohibits action of registration of a case by an authority which has been empowered by the legislature to investigate the cases. Simply because the officers belong to the office of the Hon’ble Speaker of the Legislative Assembly, the provisions of the Act do not cease to apply to them. The law does not make any differentiation and applies to all with equal vigour. As such, the initiation of action does not and cannot amount to a breach of privilege of the Legislative Assembly, which has itself conferred powers in the form of a Statute to eradicate the menace of corruption. 58) The petitioners cannot, while acting under the said statute, be said to have lowered the dignity of the very Assembly which has conferred the power upon the petitioners. The authority to act has been conferred upon the petitioners under the Act by the Legislative Assembly itself and, therefore, the action taken by the petitioners under the said Act cannot constitute a breach of privilege of that Legislative Assembly. 59) By carrying out investigation on a complaint received, the petitioners merely performed their statutory duty and did not in any way affect the privileges which were being enjoyed by the Assembly and its members. The action of the petitioners did not interfere in the working of the House and as such there are no grounds for issuing a notice for the breach of Privilege of the Legislative Assembly. 60) Also, in terms of the provisions of Section 11(2) of the Lokayukt Act, any proceeding before the Lokayukt shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and as per Section 11(3), the Lokayukt is deemed to be a court within the meaning of Contempt of Courts Act, 1971. The petitioners have merely made inquiry within the scope of the provisions of the Act and have not done anything against the Speaker personally. The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt and his officers were entitled and duty bound to carry out investigation and inquiry into the allegations made in the complaint filed before them and merely because the petitioners, after scrutinizing the relevant records, found the allegations prima facie proved, justifying detailed investigation by the Special Police Establishment under the Prevention of Corruption Act, and the performance of duty by the petitioners in no way affects any of the privileges even remotely enjoyed by the Assembly or its Members. 61) In the present matter, the petitioners have not made any inquiry against any member of the Legislative Assembly or the Speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of Legislative Assembly were completely uncalled for, illegal and unconstitutional. 62) Further, the allegations made in the complaint show that while dealing with the first complaint (E.R. 127/05), the Lokayukt found that there was no material to proceed further and closed that matter since the allegations alleged were not established. While inquiring into the second complaint since the Lokayukt found that the allegations made in the complaint were prima facie proved, SPE was directed to proceed further in accordance with law. 63) On behalf of the petitioners, it is pointed out that the facts and circumstances in the present matter show that complaints have been filed by the Members not in their interest but for the benefit of the persons involved who all are public servants. It is also pointed out that the action of breach of privilege has been instituted against the petitioners since the officers, against whom the investigation has been launched, belong to the Vidhan Sabha Secretariat. 64) We are of the view that the action being investigated by the petitioners has nothing to do with the proceedings of the House and as such the said action cannot constitute any breach of privilege of the House or its members. 65) It is made clear that privileges are available only insofar as they are necessary in order that House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act, and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Special Police Establishment is for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation. 66) In the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of any privilege. 67) Under the provisions of Section 39(1)(iii) of the Code of Criminal Procedure, 1973, every person who is aware of the commission of an offence under the Prevention of Corruption Act is duty bound to give an information available with him to the police. In other words, every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence.68) In the light of the above discussion and conclusion, the
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investigation against the Secretary or the Deputy Secretary of the LegislativeThus, from the above, it is clear that neither did the House of Commons enjoy any privilege, at the time of the commencement of the Constitution, of a nature that may have the effect of restraining any inquiry or investigation against the Secretary or the Deputy Secretary of the Legislative Assembly or for that matter against the member of the Legislative Assembly or a minister in the executive government nor does the Parliament or the Legislative Assembly of the State or its members. The laws apply equally and there is no privilege which prohibits action of registration of a case by an authority which has been empowered by the legislature to investigate the cases. Simply because the officers belong to the office of theSpeaker of the Legislative Assembly, the provisions of the Act do not cease to apply to them. The law does not make any differentiation and applies to all with equal vigour. As such, the initiation of action does not and cannot amount to a breach of privilege of the Legislative Assembly, which has itself conferred powers in the form of a Statute to eradicate the menace ofThe petitioners cannot, while acting under the said statute, be said to have lowered the dignity of the very Assembly which has conferred the power upon the petitioners. The authority to act has been conferred upon the petitioners under the Act by the Legislative Assembly itself and, therefore, the action taken by the petitioners under the said Act cannot constitute a breach of privilege of that LegislativeBy carrying out investigation on a complaint received, the petitioners merely performed their statutory duty and did not in any way affect the privileges which were being enjoyed by the Assembly and its members. The action of the petitioners did not interfere in the working of the House and as such there are no grounds for issuing a notice for the breach of Privilege of the LegislativeAlso, in terms of the provisions of Section 11(2) of the Lokayukt Act, any proceeding before the Lokayukt shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and as per Section 11(3), the Lokayukt is deemed to be a court within the meaning of Contempt of Courts Act, 1971. The petitioners have merely made inquiry within the scope of the provisions of the Act and have not done anything against the Speaker personally. The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt and his officers were entitled and duty bound to carry out investigation and inquiry into the allegations made in the complaint filed before them and merely because the petitioners, after scrutinizing the relevant records, found the allegations prima facie proved, justifying detailed investigation by the Special Police Establishment under the Prevention of Corruption Act, and the performance of duty by the petitioners in no way affects any of the privileges even remotely enjoyed by the Assembly or itsIn the present matter, the petitioners have not made any inquiry against any member of the Legislative Assembly or the Speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of Legislative Assembly were completely uncalled for, illegal andFurther, the allegations made in the complaint show that while dealing with the first complaint (E.R. 127/05), the Lokayukt found that there was no material to proceed further and closed that matter since the allegations alleged were not established. While inquiring into the second complaint since the Lokayukt found that the allegations made in the complaint were prima facie proved, SPE was directed to proceed further in accordance withOn behalf of the petitioners, it is pointed out that the facts and circumstances in the present matter show that complaints have been filed by the Members not in their interest but for the benefit of the persons involved who all are public servants. It is also pointed out that the action of breach of privilege has been instituted against the petitioners since the officers, against whom the investigation has been launched, belong to the Vidhan SabhaWe are of the view that the action being investigated by the petitioners has nothing to do with the proceedings of the House and as such the said action cannot constitute any breach of privilege of the House or itsIt is made clear that privileges are available only insofar as they are necessary in order that House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act, and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Specialis for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without anyIn the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of anyUnder the provisions of Section 39(1)(iii) of the Code of Criminal Procedure, 1973, every person who is aware of the commission of an offence under the Prevention of Corruption Act is duty bound to give an information available with him to the police. In other words, every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence.
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Bank of Baroda Limited Vs. Jewan Lal Mehrotra | Grover, J. 1. This is an appeal by special leave from a judgment of the Allahabad High Court. The facts may be stated. The respondent was appointed as a cash clerk in the appellants branch at Birhana Road, Kanpur, on April 1, 1949. In July 1955 he was working in the cash department as a Receipter and Receiving Clerk. On July 2, 1955 it was detected that there was a shortage of Rs. 1, 000/- in the cash. According to the respondent this shortage had occurred in the cash of one B. N. Shukla who was the Assistant Cashier. However B. N. Shukla created a suspicion against the respondent. The appellant instituted an inquiry. The Inquiry Officer was the agent of the Bank at its Lucknow branch. He found that the respondent was guilty of the charges which had been preferred against him in respect of the disappearance of Rs. 1, 000/-. On October 1, 1956, the services of the respondent were terminated. He instituted a suit in September 1957 alleging that the inquiry held against him was illegal for various reasons. He claimed a declaration that his dismissal was null and void and that he was still in the service of the bank. He further laid claim to the recovery of Rs. 1, 650/- being the arrears of salary from October 1, 1956 to August 31, 1957. The bank contested the suit. The learned Munsif dismissed suit holding, inter alia, that a proper inquiry had been held into the charges made against the respondent. The respondent preferred an appeal to the first additional Civil Judge, Kanpur. That appeal was allowed principally on the ground that certain witnesses had not been produced before the Inquiry Officer but their statements recorded at some prior stage had been taken into consideration by the inquiry officer without the respondent having any opportunity of cross-examining them. The suit was consequently decreed. The appellant filed a second appeal which was disposed of by a brief order by the learned single judge of the High Court. He agreed with view of the first appellate court that two witnesses had not been examined by the Inquiry Officer and their statements had been taken into consideration. The inquiry was, for that reason, not legal and proper.The decree which was passed by the first appellate court is somewhat unusual and vague. In the decree sheet all that was stated was "therefore it is ordered and decreed that this appeal be allowed with costs. The judgment and decree of the lower court be set aside and that a sum of Rs. 271/- as detailed below be paid by the respondent to the appellant on account of the costs of the appeal." It would, however, appear that the court decreed the suit in its entirety although that is not expressly stated. 2. The main point that has been urged on behalf of the appellant is that the present case was one of termination of service after given the three months notice and the ordinary law of master and servant applied. Although in case of illegal termination or dismissal the respondent could have claimed damage but he could not ask for or be granted a declaration that he should be treated as if he was still in service. The law as settled by this court is that no declaration to enfore a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravention of Art. 311; (2) where rein-statement is sought of a dismissed worker under the industrial law by labour or industrial tribunals; (3) where a statutory body has acted in breach of a mandatory obligation imposed by statute; vide Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [1970 - 20 F.L.R. 17]. The case of the respondent did not come under any of the above exceptions. Therefore in granting a declaration of the nature sought by the respondent the court acted contrary to law and that part of the decree could be upheld. On behalf of the appellant the reversal of the decree for Rs. 1650/- has not been pressed. 3. | 1[ds]The main point that has been urged on behalf of the appellant is that the present case was one of termination of service after given the three months notice and the ordinary law of master and servant applied.Although in case of illegal termination or dismissal the respondent could have claimed damage but he could not ask for or be granted a declaration that he should be treated as if he was still in service. The law as settled by this court is that no declaration to enfore a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravention of Art. 311; (2) wheret is sought of a dismissed worker under the industrial law by labour or industrial tribunals; (3) where a statutory body has acted in breach of a mandatory obligation imposed by statute; vide Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [197020 F.L.R. 17]. The case of the respondent did not come under any of the above exceptions. Therefore in granting a declaration of the nature sought by the respondent the court acted contrary to law and that part of the decree could be upheld. On behalf of the appellant the reversal of the decree for Rs. 1650/has not been pressed. | 1 | 778 | 250 | ### 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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Grover, J. 1. This is an appeal by special leave from a judgment of the Allahabad High Court. The facts may be stated. The respondent was appointed as a cash clerk in the appellants branch at Birhana Road, Kanpur, on April 1, 1949. In July 1955 he was working in the cash department as a Receipter and Receiving Clerk. On July 2, 1955 it was detected that there was a shortage of Rs. 1, 000/- in the cash. According to the respondent this shortage had occurred in the cash of one B. N. Shukla who was the Assistant Cashier. However B. N. Shukla created a suspicion against the respondent. The appellant instituted an inquiry. The Inquiry Officer was the agent of the Bank at its Lucknow branch. He found that the respondent was guilty of the charges which had been preferred against him in respect of the disappearance of Rs. 1, 000/-. On October 1, 1956, the services of the respondent were terminated. He instituted a suit in September 1957 alleging that the inquiry held against him was illegal for various reasons. He claimed a declaration that his dismissal was null and void and that he was still in the service of the bank. He further laid claim to the recovery of Rs. 1, 650/- being the arrears of salary from October 1, 1956 to August 31, 1957. The bank contested the suit. The learned Munsif dismissed suit holding, inter alia, that a proper inquiry had been held into the charges made against the respondent. The respondent preferred an appeal to the first additional Civil Judge, Kanpur. That appeal was allowed principally on the ground that certain witnesses had not been produced before the Inquiry Officer but their statements recorded at some prior stage had been taken into consideration by the inquiry officer without the respondent having any opportunity of cross-examining them. The suit was consequently decreed. The appellant filed a second appeal which was disposed of by a brief order by the learned single judge of the High Court. He agreed with view of the first appellate court that two witnesses had not been examined by the Inquiry Officer and their statements had been taken into consideration. The inquiry was, for that reason, not legal and proper.The decree which was passed by the first appellate court is somewhat unusual and vague. In the decree sheet all that was stated was "therefore it is ordered and decreed that this appeal be allowed with costs. The judgment and decree of the lower court be set aside and that a sum of Rs. 271/- as detailed below be paid by the respondent to the appellant on account of the costs of the appeal." It would, however, appear that the court decreed the suit in its entirety although that is not expressly stated. 2. The main point that has been urged on behalf of the appellant is that the present case was one of termination of service after given the three months notice and the ordinary law of master and servant applied. Although in case of illegal termination or dismissal the respondent could have claimed damage but he could not ask for or be granted a declaration that he should be treated as if he was still in service. The law as settled by this court is that no declaration to enfore a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravention of Art. 311; (2) where rein-statement is sought of a dismissed worker under the industrial law by labour or industrial tribunals; (3) where a statutory body has acted in breach of a mandatory obligation imposed by statute; vide Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [1970 - 20 F.L.R. 17]. The case of the respondent did not come under any of the above exceptions. Therefore in granting a declaration of the nature sought by the respondent the court acted contrary to law and that part of the decree could be upheld. On behalf of the appellant the reversal of the decree for Rs. 1650/- has not been pressed. 3.
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The main point that has been urged on behalf of the appellant is that the present case was one of termination of service after given the three months notice and the ordinary law of master and servant applied.Although in case of illegal termination or dismissal the respondent could have claimed damage but he could not ask for or be granted a declaration that he should be treated as if he was still in service. The law as settled by this court is that no declaration to enfore a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravention of Art. 311; (2) wheret is sought of a dismissed worker under the industrial law by labour or industrial tribunals; (3) where a statutory body has acted in breach of a mandatory obligation imposed by statute; vide Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [197020 F.L.R. 17]. The case of the respondent did not come under any of the above exceptions. Therefore in granting a declaration of the nature sought by the respondent the court acted contrary to law and that part of the decree could be upheld. On behalf of the appellant the reversal of the decree for Rs. 1650/has not been pressed.
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P.K. Badiani Vs. The Commissioner Of Income Tax, Bombay | qualified by the expression "whether capitalised or not". But the latter phrase is conspicuously absent in clause (e). What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ? The reason is not far to seek and yet not helpful to the assessee in this case.The profits of a Company can be capitalised in accordance with the Articles of Association and the law. On the capitalisation of the profits they cease to be profits in the hands of the Company. The nature of the asset is changed although it does not make any difference in the total assets of the Company. But profits stand transmuted and transformed into capital. The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders. Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised. But the Legislature did not intend to rope in the capitalised profits in clause (e). We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certificates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumulated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend. Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribution of such shares to preference shareholders is. It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumulated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Company or otherwise, cannot be co-related to the capitalised profits of the Company. To the extent the profits have been capitalised the Company cannot be said to possess any accumulated profits.But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised. Mere transferring the sum of Rs. 2, 36, 470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits. The nature of the assets in the hands of the Company did not change. It remained profits in the hands of the Company. 13. According to the Dictionary of English Law by Earl Jowitt, Vol. 1 "capitalisation" means "the conversion of profits or income into. capital, e.g., by resolution of a company". Bu ckley on the Companies Acts, thirteenth edi- tion, has pointed out at page 907 "Profits carried to re- serve do not cease to be profits unless and until they are effectually capitalised". Says the learned author at page 912 after referring to Article 128 corresponding to Regula- tion 96 of Table "A" of the Indian Companies Act:"A company may, if its constitution so al- lows, capitalize profits, instead of dividing them, by applying them in paying up unissued shares, or debentures or other securities, and issuing such shares or securities as fully paid to its members, thereby transferring th e sum capitalized from profit and loss or reserve account to share or loan capital account." 14. To the same effect is the statement of the law to be found in Palmers Company Law, twenty-first edition pa ge 673. The "capitalisation of profits". says the learned author, means "that profits which otherwise are available for distribution among the shareholders are not divided among them in cash, but that the shareholders ar e allotted further shares--or debentures--which are paid up wholly or in part out of those profits. The amount paid by the company out of its divisible profits on account of these newly issued shares is known as the bonus, and the shares are referred to as bonus shares." Lord Herscheil in the case of Ann Bouch and William Bouch v. William Bouch Sprou(12 Appeal Cases, 385. ) was considering as to what was the nature and substance of the transaction in question in that case. The learned and the noble Lord said at page 398: "I think we must look both at the substance and form of the transaction ........ And it was obviously contemplated, and was, I think, certain that no money would, in fact, pass from the company to the shareholders, but that the entire sum would remain in their hands as paid-up capital." And finally it was said at page 399: "I cannot, therefore, avoid the conclusion that the substance of the whole transaction was, and was intended to be, to convert the undivided profits into paid-up capital upon newly-created shares."The Madras High Court has pointed out in Commissioner Income-tax, Madras v. K. Srinivasan and others(50 I.T.R. 788.), to quote the placitum only:"For the purposes of section 2(6A)(e) of the Income tax Act, 1922, "accumulated profits" include general reserves. Unless the profit is capitalised in some form or other mere transfer of the profits to any reserve account will not take away from profits the character of accumulated profits." In Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(27 I.T.R. 684.)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690:"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised." It appears that the expression "capitalised or not": was added in clause (c) after this decision. 15. | 0[ds]We do not find any warrant for accepting the contention of Mr. Rajgopal that the initial depreciation or the development rebate was allowed as an extra deductible allowance of business expenses in the year of installation of new machinery for meeting the ever increasing costs of its replacement in future years. In our opinion it was meant merely to reduce the tax liability of the assessee in order to give him an incentive to instal new machineries or plants.The Gujarat High Court in the case of Viramgam Mills Co. Ltd. (supra) was concerned with the question as to whether the normal depreciation reserve of .the Company could be taken to be the accumulations of past profits within the meaning of the proviso to section 23A of the 1922 Act as it stood at the relevant time. It held that it could not form part of the accumulated past profits as in the words of Wixon (vide Wixons Accounts Hand Book) it was "the estimated expiration of asset value" or as observed by Paton in his Accountants Hand Book, Third edition it is an out-of-pocket cost as any other costIn our opinion such an allowance is in no sense a deductible item of cost or expenditure in the process of settlement of the commercial profits. Although it does not form part of the assessable profits, undoubtedly it does form part of the commercial profitsDuring the course of the arguments of this appeal, our attention was directed to a new facet of the question under consideration and that is this. In clauses (a) to (d) of section 2(6A) of the 1922-Act so also in the corresponding clauses of section 2(22) of the 1961-Act the expression "accumulated profits" is qualified by the expression "whether capitalised or not". But the latter phrase is conspicuously absent in clause (e). What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ? The reason is not far to seek and yet not helpful to the assessee in this case.The profits of a Company can be capitalised in accordance with the Articles of Association and the law. On the capitalisation of the profits they cease to be profits in the hands of the Company. The nature of the asset is changed although it does not make any difference in the total assets of the Company. But profits stand transmuted and transformed into capital. The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders. Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised. But the Legislature did not intend to rope in the capitalised profits in clause (e). We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certificates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumulated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend. Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribution of such shares to preference shareholders is. It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumulated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Company or otherwise, cannot be co-related to the capitalised profits of the Company. To the extent the profits have been capitalised the Company cannot be said to possess any accumulated profits.But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised. Mere transferring the sum of Rs. 2, 36, 470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits. The nature of the assets in the hands of the Company did not change. It remained profits in the hands of the CompanyIn Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(27 I.T.R. 684.)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690:"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised."It appears that the expression "capitalised or not": was added in clause (c) after this decision. | 0 | 5,008 | 932 | ### 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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qualified by the expression "whether capitalised or not". But the latter phrase is conspicuously absent in clause (e). What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ? The reason is not far to seek and yet not helpful to the assessee in this case.The profits of a Company can be capitalised in accordance with the Articles of Association and the law. On the capitalisation of the profits they cease to be profits in the hands of the Company. The nature of the asset is changed although it does not make any difference in the total assets of the Company. But profits stand transmuted and transformed into capital. The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders. Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised. But the Legislature did not intend to rope in the capitalised profits in clause (e). We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certificates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumulated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend. Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribution of such shares to preference shareholders is. It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumulated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Company or otherwise, cannot be co-related to the capitalised profits of the Company. To the extent the profits have been capitalised the Company cannot be said to possess any accumulated profits.But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised. Mere transferring the sum of Rs. 2, 36, 470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits. The nature of the assets in the hands of the Company did not change. It remained profits in the hands of the Company. 13. According to the Dictionary of English Law by Earl Jowitt, Vol. 1 "capitalisation" means "the conversion of profits or income into. capital, e.g., by resolution of a company". Bu ckley on the Companies Acts, thirteenth edi- tion, has pointed out at page 907 "Profits carried to re- serve do not cease to be profits unless and until they are effectually capitalised". Says the learned author at page 912 after referring to Article 128 corresponding to Regula- tion 96 of Table "A" of the Indian Companies Act:"A company may, if its constitution so al- lows, capitalize profits, instead of dividing them, by applying them in paying up unissued shares, or debentures or other securities, and issuing such shares or securities as fully paid to its members, thereby transferring th e sum capitalized from profit and loss or reserve account to share or loan capital account." 14. To the same effect is the statement of the law to be found in Palmers Company Law, twenty-first edition pa ge 673. The "capitalisation of profits". says the learned author, means "that profits which otherwise are available for distribution among the shareholders are not divided among them in cash, but that the shareholders ar e allotted further shares--or debentures--which are paid up wholly or in part out of those profits. The amount paid by the company out of its divisible profits on account of these newly issued shares is known as the bonus, and the shares are referred to as bonus shares." Lord Herscheil in the case of Ann Bouch and William Bouch v. William Bouch Sprou(12 Appeal Cases, 385. ) was considering as to what was the nature and substance of the transaction in question in that case. The learned and the noble Lord said at page 398: "I think we must look both at the substance and form of the transaction ........ And it was obviously contemplated, and was, I think, certain that no money would, in fact, pass from the company to the shareholders, but that the entire sum would remain in their hands as paid-up capital." And finally it was said at page 399: "I cannot, therefore, avoid the conclusion that the substance of the whole transaction was, and was intended to be, to convert the undivided profits into paid-up capital upon newly-created shares."The Madras High Court has pointed out in Commissioner Income-tax, Madras v. K. Srinivasan and others(50 I.T.R. 788.), to quote the placitum only:"For the purposes of section 2(6A)(e) of the Income tax Act, 1922, "accumulated profits" include general reserves. Unless the profit is capitalised in some form or other mere transfer of the profits to any reserve account will not take away from profits the character of accumulated profits." In Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(27 I.T.R. 684.)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690:"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised." It appears that the expression "capitalised or not": was added in clause (c) after this decision. 15.
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We do not find any warrant for accepting the contention of Mr. Rajgopal that the initial depreciation or the development rebate was allowed as an extra deductible allowance of business expenses in the year of installation of new machinery for meeting the ever increasing costs of its replacement in future years. In our opinion it was meant merely to reduce the tax liability of the assessee in order to give him an incentive to instal new machineries or plants.The Gujarat High Court in the case of Viramgam Mills Co. Ltd. (supra) was concerned with the question as to whether the normal depreciation reserve of .the Company could be taken to be the accumulations of past profits within the meaning of the proviso to section 23A of the 1922 Act as it stood at the relevant time. It held that it could not form part of the accumulated past profits as in the words of Wixon (vide Wixons Accounts Hand Book) it was "the estimated expiration of asset value" or as observed by Paton in his Accountants Hand Book, Third edition it is an out-of-pocket cost as any other costIn our opinion such an allowance is in no sense a deductible item of cost or expenditure in the process of settlement of the commercial profits. Although it does not form part of the assessable profits, undoubtedly it does form part of the commercial profitsDuring the course of the arguments of this appeal, our attention was directed to a new facet of the question under consideration and that is this. In clauses (a) to (d) of section 2(6A) of the 1922-Act so also in the corresponding clauses of section 2(22) of the 1961-Act the expression "accumulated profits" is qualified by the expression "whether capitalised or not". But the latter phrase is conspicuously absent in clause (e). What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ? The reason is not far to seek and yet not helpful to the assessee in this case.The profits of a Company can be capitalised in accordance with the Articles of Association and the law. On the capitalisation of the profits they cease to be profits in the hands of the Company. The nature of the asset is changed although it does not make any difference in the total assets of the Company. But profits stand transmuted and transformed into capital. The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders. Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised. But the Legislature did not intend to rope in the capitalised profits in clause (e). We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certificates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumulated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend. Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribution of such shares to preference shareholders is. It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumulated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Company or otherwise, cannot be co-related to the capitalised profits of the Company. To the extent the profits have been capitalised the Company cannot be said to possess any accumulated profits.But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised. Mere transferring the sum of Rs. 2, 36, 470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits. The nature of the assets in the hands of the Company did not change. It remained profits in the hands of the CompanyIn Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(27 I.T.R. 684.)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690:"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised."It appears that the expression "capitalised or not": was added in clause (c) after this decision.
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Ved Prakash Agarwal Vs. Rama Petrochemicals Limited | Conciliation Act, 1996, One of the submissions was that a reference was pending before the BIFR and that the agreement in question in realitv was not a lease agreement, but a finance agreement. The Court looked into the documents and observed in para 9 that section 22 of SICA has no application to a lease agreement, and in such a case the property is not the property of the company. ( 23 ) WE have considered the submissions made by both the Counsel. As noted earlier, what we have to examine is as to whether the guarantee concerned was in respect of any loan or advance granted to the industrial company. Having seen the clauses from the agreement, there is no difficulty in saying that the property in the equipment remains with the respondent all throughout and does not pass on to the industrial company. It is again material to note that the industrial company has all throughout understood the document as a lease agreement and not as a finance loan. At no point of time, there is any reference to the document as a finance agreement, not even in the letter of the Advocates of the appellant prior to the proceedings. The right of the lessor to take back the property at all material times is clearly writ large on the document. Besides, the guarantee given by the appellant is an independent guarantee given to the respondent. It clearly states in terms that it is as if given by the principal debtor and it will be irrevocable until the lessee discharges all the obligations. The Apex Court in some of the recent judgments has laid down the guidelines when it comes to interpreting the documents entered into between the parties. In para 10 of the judgment in the case of (M. Arul Jothi v. Lajja Bai), A. I. R. 2000 S. C. 1122, the Apex Court has observed that "once parties enter into a contract, then every word stated therein has to be given its due meaning which reveals the rights and obligations between the parties. No part of the agreement or words used therein could be said to be redundant. " In para 16 of (Roop Kumar v. Mohan Thedam), 2004 (1) Bom. C. R. (S. C.)329 : 2003 (6) S. C. C. 595, the Apex Court observed the following:"when persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the Courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties (See Mckelveys Evidence, p. 294 ). "( 24 ) IN the present case, as stated above, we are concerned with the relationship created by the respondent with the industrial company. The respondent is undoubtedly saying that it is a lease document. The industrial company has no where stated in the documents or in correspondence that it is not a lease agreement. When the text of the totality of the clauses and their tenor is seen, one cannot take some clauses with respect to payment of interest apart and hold that it is a finance agrement. One has to read the agreement to provide meaning to all its clauses. Any such interpretation canvassed by the appellant will render the specific clauses on ownership and return on default, identification and insurance etc. redundant. That cannot be permitted as held in Arul Jothis case (supra ). Besides, any such interpretation will go against the express intention of the contracting parties. That also cannot be permitted as held in Roop Kumar (supra ). The tenor of the entire agreement is clear that the respondent had purchased the particular equipment and leased it to the industrial company and it was to remain equipment owned by the respondent throughout the period of the agreement. It is another matter that at the end of the period if the twenty equated instalments and the residual amount was paid, the ownership was to pass on to the industrial company. That will not change the nature of the agreement during the subsistence thereof, viz. that it was an agreement of lease of equipment and not a financial agreement. There is no scope to read the agreement as anything else as in the case of Sundaram Finance (supra ). Similarly the principles of purposive interpretation relied upon by the appellant have no application in the present case since the amendment to section 22 is clear and unambiguous as explained in PICUP (supra ). ( 25 ) IT is clear from the narration that it was the obligation of the industrial company to make the periodical payment and use the machines. The industrial company had defaulted in making the payment and, therefore, the respondent had every right to get back the machinery. As far as the present suit is concerned, it is with respect to the guarantee given by the appellant to fulfill the obligations of the industrial company on his own. The text of the guarantee is also very clear. That guarantee cannot be said to be a guarantee with respect to the repayment of a loan. Similarly, as stated earlier, in an advance of money the right of the financier is only with respect to money and not in the property. In the present case, there are clear rights of the financiers in the property. That being so, it cannot be said that the lease finance given by the respondent to the industrial company was in fact a loan or an advance and which was guaranteed by the appellant. In view of this conclusion arrived at, on the second point for determination also there is no substance in the appeal. | 0[ds]( 24 ) IN the present case, as stated above, we are concerned with the relationship created by the respondent with the industrial company. The respondent is undoubtedly saying that it is a lease document. The industrial company has no where stated in the documents or in correspondence that it is not a lease agreement. When the text of the totality of the clauses and their tenor is seen, one cannot take some clauses with respect to payment of interest apart and hold that it is a finance agrement. One has to read the agreement to provide meaning to all its clauses. Any such interpretation canvassed by the appellant will render the specific clauses on ownership and return on default, identification and insurance etc. redundant. That cannot be permitted as held in Arul Jothis case (supra ). Besides, any such interpretation will go against the express intention of the contracting parties. That also cannot be permitted as held in Roop Kumar (supra ). The tenor of the entire agreement is clear that the respondent had purchased the particular equipment and leased it to the industrial company and it was to remain equipment owned by the respondent throughout the period of the agreement. It is another matter that at the end of the period if the twenty equated instalments and the residual amount was paid, the ownership was to pass on to the industrial company. That will not change the nature of the agreement during the subsistence thereof, viz. that it was an agreement of lease of equipment and not a financial agreement. There is no scope to read the agreement as anything else as in the case of Sundaram Finance (supra ). Similarly the principles of purposive interpretation relied upon by the appellant have no application in the present case since the amendment to section 22 is clear and unambiguous as explained in PICUP (supra25 ) IT is clear from the narration that it was the obligation of the industrial company to make the periodical payment and use the machines. The industrial company had defaulted in making the payment and, therefore, the respondent had every right to get back the machinery. As far as the present suit is concerned, it is with respect to the guarantee given by the appellant to fulfill the obligations of the industrial company on his own. The text of the guarantee is also very clear. That guarantee cannot be said to be a guarantee with respect to the repayment of a loan. Similarly, as stated earlier, in an advance of money the right of the financier is only with respect to money and not in the property. In the present case, there are clear rights of the financiers in the property. That being so, it cannot be said that the lease finance given by the respondent to the industrial company was in fact a loan or an advance and which was guaranteed by the appellant. In view of this conclusion arrived at, on the second point for determination also there is no substance in the appeal. | 0 | 7,861 | 563 | ### 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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Conciliation Act, 1996, One of the submissions was that a reference was pending before the BIFR and that the agreement in question in realitv was not a lease agreement, but a finance agreement. The Court looked into the documents and observed in para 9 that section 22 of SICA has no application to a lease agreement, and in such a case the property is not the property of the company. ( 23 ) WE have considered the submissions made by both the Counsel. As noted earlier, what we have to examine is as to whether the guarantee concerned was in respect of any loan or advance granted to the industrial company. Having seen the clauses from the agreement, there is no difficulty in saying that the property in the equipment remains with the respondent all throughout and does not pass on to the industrial company. It is again material to note that the industrial company has all throughout understood the document as a lease agreement and not as a finance loan. At no point of time, there is any reference to the document as a finance agreement, not even in the letter of the Advocates of the appellant prior to the proceedings. The right of the lessor to take back the property at all material times is clearly writ large on the document. Besides, the guarantee given by the appellant is an independent guarantee given to the respondent. It clearly states in terms that it is as if given by the principal debtor and it will be irrevocable until the lessee discharges all the obligations. The Apex Court in some of the recent judgments has laid down the guidelines when it comes to interpreting the documents entered into between the parties. In para 10 of the judgment in the case of (M. Arul Jothi v. Lajja Bai), A. I. R. 2000 S. C. 1122, the Apex Court has observed that "once parties enter into a contract, then every word stated therein has to be given its due meaning which reveals the rights and obligations between the parties. No part of the agreement or words used therein could be said to be redundant. " In para 16 of (Roop Kumar v. Mohan Thedam), 2004 (1) Bom. C. R. (S. C.)329 : 2003 (6) S. C. C. 595, the Apex Court observed the following:"when persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the Courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties (See Mckelveys Evidence, p. 294 ). "( 24 ) IN the present case, as stated above, we are concerned with the relationship created by the respondent with the industrial company. The respondent is undoubtedly saying that it is a lease document. The industrial company has no where stated in the documents or in correspondence that it is not a lease agreement. When the text of the totality of the clauses and their tenor is seen, one cannot take some clauses with respect to payment of interest apart and hold that it is a finance agrement. One has to read the agreement to provide meaning to all its clauses. Any such interpretation canvassed by the appellant will render the specific clauses on ownership and return on default, identification and insurance etc. redundant. That cannot be permitted as held in Arul Jothis case (supra ). Besides, any such interpretation will go against the express intention of the contracting parties. That also cannot be permitted as held in Roop Kumar (supra ). The tenor of the entire agreement is clear that the respondent had purchased the particular equipment and leased it to the industrial company and it was to remain equipment owned by the respondent throughout the period of the agreement. It is another matter that at the end of the period if the twenty equated instalments and the residual amount was paid, the ownership was to pass on to the industrial company. That will not change the nature of the agreement during the subsistence thereof, viz. that it was an agreement of lease of equipment and not a financial agreement. There is no scope to read the agreement as anything else as in the case of Sundaram Finance (supra ). Similarly the principles of purposive interpretation relied upon by the appellant have no application in the present case since the amendment to section 22 is clear and unambiguous as explained in PICUP (supra ). ( 25 ) IT is clear from the narration that it was the obligation of the industrial company to make the periodical payment and use the machines. The industrial company had defaulted in making the payment and, therefore, the respondent had every right to get back the machinery. As far as the present suit is concerned, it is with respect to the guarantee given by the appellant to fulfill the obligations of the industrial company on his own. The text of the guarantee is also very clear. That guarantee cannot be said to be a guarantee with respect to the repayment of a loan. Similarly, as stated earlier, in an advance of money the right of the financier is only with respect to money and not in the property. In the present case, there are clear rights of the financiers in the property. That being so, it cannot be said that the lease finance given by the respondent to the industrial company was in fact a loan or an advance and which was guaranteed by the appellant. In view of this conclusion arrived at, on the second point for determination also there is no substance in the appeal.
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( 24 ) IN the present case, as stated above, we are concerned with the relationship created by the respondent with the industrial company. The respondent is undoubtedly saying that it is a lease document. The industrial company has no where stated in the documents or in correspondence that it is not a lease agreement. When the text of the totality of the clauses and their tenor is seen, one cannot take some clauses with respect to payment of interest apart and hold that it is a finance agrement. One has to read the agreement to provide meaning to all its clauses. Any such interpretation canvassed by the appellant will render the specific clauses on ownership and return on default, identification and insurance etc. redundant. That cannot be permitted as held in Arul Jothis case (supra ). Besides, any such interpretation will go against the express intention of the contracting parties. That also cannot be permitted as held in Roop Kumar (supra ). The tenor of the entire agreement is clear that the respondent had purchased the particular equipment and leased it to the industrial company and it was to remain equipment owned by the respondent throughout the period of the agreement. It is another matter that at the end of the period if the twenty equated instalments and the residual amount was paid, the ownership was to pass on to the industrial company. That will not change the nature of the agreement during the subsistence thereof, viz. that it was an agreement of lease of equipment and not a financial agreement. There is no scope to read the agreement as anything else as in the case of Sundaram Finance (supra ). Similarly the principles of purposive interpretation relied upon by the appellant have no application in the present case since the amendment to section 22 is clear and unambiguous as explained in PICUP (supra25 ) IT is clear from the narration that it was the obligation of the industrial company to make the periodical payment and use the machines. The industrial company had defaulted in making the payment and, therefore, the respondent had every right to get back the machinery. As far as the present suit is concerned, it is with respect to the guarantee given by the appellant to fulfill the obligations of the industrial company on his own. The text of the guarantee is also very clear. That guarantee cannot be said to be a guarantee with respect to the repayment of a loan. Similarly, as stated earlier, in an advance of money the right of the financier is only with respect to money and not in the property. In the present case, there are clear rights of the financiers in the property. That being so, it cannot be said that the lease finance given by the respondent to the industrial company was in fact a loan or an advance and which was guaranteed by the appellant. In view of this conclusion arrived at, on the second point for determination also there is no substance in the appeal.
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VARUN PAHWA Vs. RENU CHAUDHARY | of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced. 9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. In State of Maharashtra vs. Hindustan Construction Company Limited (2010) 4 SCC 518 , this Court held as under:- 17. Insofar as the Code of Civil Procedure, 1908 (for short CPC) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 - an appeal that came up before the Court of Appeal, Brett M.R. stated: ... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment (CA) should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….19. In Charan Das v. Amir Khan (1919-20) 47 IA 255 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case. *** *** *** 22. In Jai Jai Ram Manohar Lal (1969) 1 SCC 869 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) 5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7): 7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant. 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. | 1[ds]8. The plaint is not properly drafted in as much as in the memo of parties, the Plaintiff is described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. | 1 | 1,749 | 579 | ### Instruction:
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of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced. 9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. In State of Maharashtra vs. Hindustan Construction Company Limited (2010) 4 SCC 518 , this Court held as under:- 17. Insofar as the Code of Civil Procedure, 1908 (for short CPC) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 - an appeal that came up before the Court of Appeal, Brett M.R. stated: ... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment (CA) should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….19. In Charan Das v. Amir Khan (1919-20) 47 IA 255 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case. *** *** *** 22. In Jai Jai Ram Manohar Lal (1969) 1 SCC 869 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) 5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7): 7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant. 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law.
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8. The plaint is not properly drafted in as much as in the memo of parties, the Plaintiff is described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law.
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Rampalit Vyakaran Acharya and Others Vs. Punjab University and Another | Goswami, J.1. This is a case where certain Sanskrit teachers educated in the traditional way and obtaining degree of Acharya are smarting under a grievance that they have the worse even in their own field of operation by the yardstick of the prevalent standard in the modern universities.2. The four appellants are Acharyas and were appointed in the Vishveshvaranand and Institute of Sanskrit and Indo-logical Studiesm Hoshiarpur (briefly the institute) between the years 1944 and 1963 in the teaching department as pandits. The teaching work in the institute commenced in the year 1960. The first appellant started teaching besides his research work from that year. The other appellant were doing teaching as well as research from the dates of their respective appointments.3. The institute was taken over by the Punjab University on November 4, 1967 giving it effect, however, from April 1, 1966. The Vice-Chancellors recommendations that the pay scales of personnel in the traditional section be brought in line with the grades obtaining in the University were "agreed to" (para 3 of the special leave petition) at the meeting of the Board of Control. On April 1, 1966, the scale of pay of the appellants in the Institute was Rs. 100-8-22-10-300. The University fixed their grade at Rs. 145-7-180-12-300 and that is their grievance. They claim the equivalent grade of Acharyas in accordance with the revised scale in 1969.4. It appears the senate approved the resolution of the Board of Control, dated November 4, 1967, which reads as follows :"That the following recommendation of the Committee appointed by the Board of Control of V.V.R.I. and I.S. Hoshiarpur, regarding pay scales, fixation of the salaries of the personnel in the Tradition Section, so as to bring in one with the grades prevailing in the University to (sic) be approved."The Punjab Universitys letter of November 6, 1969 contains the resolutions regarding revision of pay scales of teaching personnel. The contents of this letter show that the Syndicate Vide para 66 of its proceedings, dated October 26, 1969, had approved the following pay scales for teachers of affiliated/associated Sanskrit institution in Punjab, Haryana, Himachal Pradesh and Union Territory Chandigarh :Category Present pay scale Proposed pay scaleShastri plus B.A. Rs. 150-10-250 Rs. 220-10-350/15-500 or Shastri plus PrabhakarAcharya or Rs. 150-10-250 Rs. 300-25-450/25-600 Shastri plus M.A. SanskritPrincipal Rs. 200-15-320/20-500 Rs. 400-30-640/40-800Having failed to get a favourable decision from the University about fixation of their grades as per the aforesaid resolution, the appellants filed an application under Art. 226 in the High Court of Punjab and Haryana which was dismissed by the learned single Judge. A Letters Patent Appeal met with the same fate. Hence appeal by special leave.5. The only submission made on behalf of the University before us is that the scale of Rs. 300-600 which is the proposed pay scale in place of the earlier scale of Rs. 150-250 is available to Acharyas provided they have also an M.A. degree in Sanskrit. This is the meaning which was given by the University to the resolution quoted above and the same is pressed into service before us by Mr. Sibbal. We are, however, unable to accept the submission.6. That Acharya is equivalent to M.A., is clear from the letter No. F. 46-1/63-SU dated January 23, 1964 from the Government of India, Ministry of Education to Education Secretaries of all the State Governments/Union Territory Governments/Administrations and Registrars of all Universities on the subject of equivalence of Sanskrit Examinations as given in an enclosed statement Entry 21 in column 1 of that statement mentions the Punjab University, Chandigarh, where Shastri is shown as equivalent to B.A. and Acharya to M.A. It is significant to note from the letter of the Ministry of Education that Government is keen regarding development of Sanskrit in the country and it has impressed upon all the Universities "that they should employ at least one traditional Sanskrit scholar and the scholar so employed should enjoy the same status and pay-scales as his counterparts trained on modern lines with equivalent degrees". It goes on further to "say" that the employment of traditional Sanskrit Pandits in High/Higher Secondary Schools/Colleges should also be given the due encouragement. Teachers so employed should be treated on par with other teachers possessing equivalent qualifications of the general educational set up."7. That being the position the appellants should have a real grievance if being Acharyas they are now shown the cold shoulder by the University in not giving them their due recognition. From the letter of the Registrar, Punjab University, dated November 6, 1969, quoted above, it is clear that Shastri plus B.A. or Shastri plus Prabhakar is one category and is inferior to Acharya which is at par with Shastri plus M. A. Sanskrit. It is, therefore, clear even from the above letter of the University that Acharyas need not have in addition an M.A. degree in Sanskrit in order to be entitled to the grade of Rs. 300-600 quoted above. It is, therefore, clear that after their services have been taken over by the University, the appellants will be entitled to scales of pay appertaining to Acharyas and as available to them during the relevant period. Their claim to such scales cannot be defeated by the fact that they are not also in addition holders of M.A. degree in Sanskrit.8. No other point was canvassed before us on behalf of the respondents. | 1[ds]6. That Acharya is equivalent to M.A., is clear from the letter No. F.dated January 23, 1964 from the Government of India, Ministry of Education to Education Secretaries of all the State Governments/Union Territory Governments/Administrations and Registrars of all Universities on the subject of equivalence of Sanskrit Examinations as given in an enclosed statement Entry 21 in column 1 of that statement mentions the Punjab University, Chandigarh, where Shastri is shown as equivalent to B.A. and Acharya to M.A. It is significant to note from the letter of the Ministry of Education that Government is keen regarding development of Sanskrit in the country and it has impressed upon all the Universities "that they should employ at least one traditional Sanskrit scholar and the scholar so employed should enjoy the same status andas his counterparts trained on modern lines with equivalent degrees". It goes on further to "say" that the employment of traditional Sanskrit Pandits in High/Higher Secondary Schools/Colleges should also be given the due encouragement. Teachers so employed should be treated on par with other teachers possessing equivalent qualifications of the general educational set up."7. That being the position the appellants should have a real grievance if being Acharyas they are now shown the cold shoulder by the University in not giving them their due recognition. From the letter of the Registrar, Punjab University, dated November 6, 1969, quoted above, it is clear that Shastri plus B.A. or Shastri plus Prabhakar is one category and is inferior to Acharya which is at par with Shastri plus M. A. Sanskrit. It is, therefore, clear even from the above letter of the University that Acharyas need not have in addition an M.A. degree in Sanskrit in order to be entitled to the grade of Rs.quoted above. It is, therefore, clear that after their services have been taken over by the University, the appellants will be entitled to scales of pay appertaining to Acharyas and as available to them during the relevant period. Their claim to such scales cannot be defeated by the fact that they are not also in addition holders of M.A. degree in Sanskrit.8. No other point was canvassed before us on behalf of the respondents. | 1 | 1,004 | 408 | ### 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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Goswami, J.1. This is a case where certain Sanskrit teachers educated in the traditional way and obtaining degree of Acharya are smarting under a grievance that they have the worse even in their own field of operation by the yardstick of the prevalent standard in the modern universities.2. The four appellants are Acharyas and were appointed in the Vishveshvaranand and Institute of Sanskrit and Indo-logical Studiesm Hoshiarpur (briefly the institute) between the years 1944 and 1963 in the teaching department as pandits. The teaching work in the institute commenced in the year 1960. The first appellant started teaching besides his research work from that year. The other appellant were doing teaching as well as research from the dates of their respective appointments.3. The institute was taken over by the Punjab University on November 4, 1967 giving it effect, however, from April 1, 1966. The Vice-Chancellors recommendations that the pay scales of personnel in the traditional section be brought in line with the grades obtaining in the University were "agreed to" (para 3 of the special leave petition) at the meeting of the Board of Control. On April 1, 1966, the scale of pay of the appellants in the Institute was Rs. 100-8-22-10-300. The University fixed their grade at Rs. 145-7-180-12-300 and that is their grievance. They claim the equivalent grade of Acharyas in accordance with the revised scale in 1969.4. It appears the senate approved the resolution of the Board of Control, dated November 4, 1967, which reads as follows :"That the following recommendation of the Committee appointed by the Board of Control of V.V.R.I. and I.S. Hoshiarpur, regarding pay scales, fixation of the salaries of the personnel in the Tradition Section, so as to bring in one with the grades prevailing in the University to (sic) be approved."The Punjab Universitys letter of November 6, 1969 contains the resolutions regarding revision of pay scales of teaching personnel. The contents of this letter show that the Syndicate Vide para 66 of its proceedings, dated October 26, 1969, had approved the following pay scales for teachers of affiliated/associated Sanskrit institution in Punjab, Haryana, Himachal Pradesh and Union Territory Chandigarh :Category Present pay scale Proposed pay scaleShastri plus B.A. Rs. 150-10-250 Rs. 220-10-350/15-500 or Shastri plus PrabhakarAcharya or Rs. 150-10-250 Rs. 300-25-450/25-600 Shastri plus M.A. SanskritPrincipal Rs. 200-15-320/20-500 Rs. 400-30-640/40-800Having failed to get a favourable decision from the University about fixation of their grades as per the aforesaid resolution, the appellants filed an application under Art. 226 in the High Court of Punjab and Haryana which was dismissed by the learned single Judge. A Letters Patent Appeal met with the same fate. Hence appeal by special leave.5. The only submission made on behalf of the University before us is that the scale of Rs. 300-600 which is the proposed pay scale in place of the earlier scale of Rs. 150-250 is available to Acharyas provided they have also an M.A. degree in Sanskrit. This is the meaning which was given by the University to the resolution quoted above and the same is pressed into service before us by Mr. Sibbal. We are, however, unable to accept the submission.6. That Acharya is equivalent to M.A., is clear from the letter No. F. 46-1/63-SU dated January 23, 1964 from the Government of India, Ministry of Education to Education Secretaries of all the State Governments/Union Territory Governments/Administrations and Registrars of all Universities on the subject of equivalence of Sanskrit Examinations as given in an enclosed statement Entry 21 in column 1 of that statement mentions the Punjab University, Chandigarh, where Shastri is shown as equivalent to B.A. and Acharya to M.A. It is significant to note from the letter of the Ministry of Education that Government is keen regarding development of Sanskrit in the country and it has impressed upon all the Universities "that they should employ at least one traditional Sanskrit scholar and the scholar so employed should enjoy the same status and pay-scales as his counterparts trained on modern lines with equivalent degrees". It goes on further to "say" that the employment of traditional Sanskrit Pandits in High/Higher Secondary Schools/Colleges should also be given the due encouragement. Teachers so employed should be treated on par with other teachers possessing equivalent qualifications of the general educational set up."7. That being the position the appellants should have a real grievance if being Acharyas they are now shown the cold shoulder by the University in not giving them their due recognition. From the letter of the Registrar, Punjab University, dated November 6, 1969, quoted above, it is clear that Shastri plus B.A. or Shastri plus Prabhakar is one category and is inferior to Acharya which is at par with Shastri plus M. A. Sanskrit. It is, therefore, clear even from the above letter of the University that Acharyas need not have in addition an M.A. degree in Sanskrit in order to be entitled to the grade of Rs. 300-600 quoted above. It is, therefore, clear that after their services have been taken over by the University, the appellants will be entitled to scales of pay appertaining to Acharyas and as available to them during the relevant period. Their claim to such scales cannot be defeated by the fact that they are not also in addition holders of M.A. degree in Sanskrit.8. No other point was canvassed before us on behalf of the respondents.
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1
### Explanation:
6. That Acharya is equivalent to M.A., is clear from the letter No. F.dated January 23, 1964 from the Government of India, Ministry of Education to Education Secretaries of all the State Governments/Union Territory Governments/Administrations and Registrars of all Universities on the subject of equivalence of Sanskrit Examinations as given in an enclosed statement Entry 21 in column 1 of that statement mentions the Punjab University, Chandigarh, where Shastri is shown as equivalent to B.A. and Acharya to M.A. It is significant to note from the letter of the Ministry of Education that Government is keen regarding development of Sanskrit in the country and it has impressed upon all the Universities "that they should employ at least one traditional Sanskrit scholar and the scholar so employed should enjoy the same status andas his counterparts trained on modern lines with equivalent degrees". It goes on further to "say" that the employment of traditional Sanskrit Pandits in High/Higher Secondary Schools/Colleges should also be given the due encouragement. Teachers so employed should be treated on par with other teachers possessing equivalent qualifications of the general educational set up."7. That being the position the appellants should have a real grievance if being Acharyas they are now shown the cold shoulder by the University in not giving them their due recognition. From the letter of the Registrar, Punjab University, dated November 6, 1969, quoted above, it is clear that Shastri plus B.A. or Shastri plus Prabhakar is one category and is inferior to Acharya which is at par with Shastri plus M. A. Sanskrit. It is, therefore, clear even from the above letter of the University that Acharyas need not have in addition an M.A. degree in Sanskrit in order to be entitled to the grade of Rs.quoted above. It is, therefore, clear that after their services have been taken over by the University, the appellants will be entitled to scales of pay appertaining to Acharyas and as available to them during the relevant period. Their claim to such scales cannot be defeated by the fact that they are not also in addition holders of M.A. degree in Sanskrit.8. No other point was canvassed before us on behalf of the respondents.
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Jaisri Sahu Vs. Rajdewan Dubey And Others | sale in favour of the appellant is a proper one binding on the reversioners. We are of opinion that this finding is not open to attack in Second Appeal. 9. Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of the same High Court.When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.In Buddah Singh v. Laltu Singh, ILR 37 All 605 : (AIR 1915 PC 70) the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench. After referring to Suraya Bhukta v. Lakhshminarasamma, ILR 5 Mad 291 and Chinnasami Pillai v.Kunju Pillai, ILR 35 Mad 152 where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smriti Chandrika, the Privy Council observed:- Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar v. Rangaraja Bhattar, ILR 2 Mad 202) of the same court to which Turner, C.J., was also a party. In that Case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies. Had that course been followed their Lordships would probably have had more detailed reasoning as to the change of opinion on the part at least of one Judge. (pp. 622, 623 (of ILR All) .(at p. 77 of AIR) ). 10. Considering this question, a Full Bench of the Madras High Court observed in Seshamma v. Venkata Narasimharao, ILR 1940 Mad 454 at p. 474: (AIR 1940 Mad 356 at p. 362) (FB) : The Division Bench is the final Court of appeal in an Indian Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; see The Vera Cruz (No. 2) (1884) 9 P.D. 96), Harrison v. Ridgiway ((1925) 133 LT 238), Ratkinsky v. Jacobs ((1929) 1 KB 24) and Phillips v. Copping ((1935) 1 K.B. 15). If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench for which the rules of this court provide. If this course is not adopted, the courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time. Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting deadens, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in ILR (1940) Mad 454: (AIR 1940 Mad 356) (FB) that the decision of a Court of Appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsburys Laws of England third edition, Vol. 22, para, 1687, pp. 799-800:- The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. In Virayya v. Venkata Subbayya (S) AIR 1955 Andhra 215 at p. 217 it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in D. D. Bilimoria v. Central Bank of India, Ltd., Bombay, AIR 1943 Nag 340. The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court. | 1[ds]As already stated, Rai, J. appears to have been impressed by this contention. But when the contention is further examined it will be found to be wholly without substance. What the District Munsif said was that after the death of Pirthi Dubey the relatives of Laung Kuer had fallen on her property like vultures, and that it was quite possible that the transaction in question was also brought at their instance and they were also benefited by it. This only, means that the relatives of Laung Kuer were guilty of spoliation of the estate. But that would not affect the rights of the appellant unless he was a party to it, which however, is not the caseIf the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it. Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. That, however, is not the law6. Judged by these principles, when there is a mortgage subsisting on the property the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper caseincome from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income. In this view, the decision in Dasrath Singhs case, 8 Pat LT 314 : AIR 1927 Pat. 219 in so far as it held that a sale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrongIn our judgment these observations correctly state the position in law8. It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes. She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her. On the other hand, by a sale of a portion of the properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to redeem the other properties and the estate had the benefit of the income from those properties. The district Munsif and the Subordinate Judge on appeal have both of them held on a review of all the facts that the sale in favour of the appellant is a proper one binding on the reversioners. We are of opinion that this finding is not open to attack in Second AppealThe better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court. | 1 | 4,166 | 613 | ### 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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sale in favour of the appellant is a proper one binding on the reversioners. We are of opinion that this finding is not open to attack in Second Appeal. 9. Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of the same High Court.When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.In Buddah Singh v. Laltu Singh, ILR 37 All 605 : (AIR 1915 PC 70) the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench. After referring to Suraya Bhukta v. Lakhshminarasamma, ILR 5 Mad 291 and Chinnasami Pillai v.Kunju Pillai, ILR 35 Mad 152 where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smriti Chandrika, the Privy Council observed:- Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar v. Rangaraja Bhattar, ILR 2 Mad 202) of the same court to which Turner, C.J., was also a party. In that Case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies. Had that course been followed their Lordships would probably have had more detailed reasoning as to the change of opinion on the part at least of one Judge. (pp. 622, 623 (of ILR All) .(at p. 77 of AIR) ). 10. Considering this question, a Full Bench of the Madras High Court observed in Seshamma v. Venkata Narasimharao, ILR 1940 Mad 454 at p. 474: (AIR 1940 Mad 356 at p. 362) (FB) : The Division Bench is the final Court of appeal in an Indian Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; see The Vera Cruz (No. 2) (1884) 9 P.D. 96), Harrison v. Ridgiway ((1925) 133 LT 238), Ratkinsky v. Jacobs ((1929) 1 KB 24) and Phillips v. Copping ((1935) 1 K.B. 15). If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench for which the rules of this court provide. If this course is not adopted, the courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time. Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting deadens, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in ILR (1940) Mad 454: (AIR 1940 Mad 356) (FB) that the decision of a Court of Appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsburys Laws of England third edition, Vol. 22, para, 1687, pp. 799-800:- The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. In Virayya v. Venkata Subbayya (S) AIR 1955 Andhra 215 at p. 217 it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in D. D. Bilimoria v. Central Bank of India, Ltd., Bombay, AIR 1943 Nag 340. The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court.
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As already stated, Rai, J. appears to have been impressed by this contention. But when the contention is further examined it will be found to be wholly without substance. What the District Munsif said was that after the death of Pirthi Dubey the relatives of Laung Kuer had fallen on her property like vultures, and that it was quite possible that the transaction in question was also brought at their instance and they were also benefited by it. This only, means that the relatives of Laung Kuer were guilty of spoliation of the estate. But that would not affect the rights of the appellant unless he was a party to it, which however, is not the caseIf the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it. Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. That, however, is not the law6. Judged by these principles, when there is a mortgage subsisting on the property the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper caseincome from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income. In this view, the decision in Dasrath Singhs case, 8 Pat LT 314 : AIR 1927 Pat. 219 in so far as it held that a sale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrongIn our judgment these observations correctly state the position in law8. It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes. She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her. On the other hand, by a sale of a portion of the properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to redeem the other properties and the estate had the benefit of the income from those properties. The district Munsif and the Subordinate Judge on appeal have both of them held on a review of all the facts that the sale in favour of the appellant is a proper one binding on the reversioners. We are of opinion that this finding is not open to attack in Second AppealThe better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court.
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Y.L. Agarwalla Vs. Commissioner of Income Tax Central Calcutta | and the said Yudhisthir Lal Agarwalla since deceased." What is more, there is no provision for payment of interest on the respective amount of capital lying to the credit of three surviving partners and the deceased Yudhisthir Lal. In our view Cl. 6 is a tell tale clause which carries its own tale that this new partnership agreement containing such a term could not have come about without the assent and agreement on the part of the widow on behalf of the Hindu undivided family. Further the factual interest free retention and utilization of the said capital amount of the Hindu undivided family by the firm for the entire relevant period i.e. from December 19, 1967 to August 31, 1968 - presumably pursuant to the said clause - clinches the said inference. It is true that the widow is not a signatory to the new deed of partnership; it is also true that the three minor sons could not in law be regarded as the nominees or benamidars of the Hindu undivided family in the firm, but the facts and circumstances discussed above, especially the incorporation of a term like Cl. 6 in the new deed and the factual interest free retention and utilization of the Hindu undivided familys funds for the relevant period by the firm clearly lead to the inference that the new partnership under the deed dated January 11, 1968 was brought about with the tacit assent and agreement on the part of the widow representing the Hindu undivided family and that the quid pro quo for admitting the three minor sons of Yudhisthir Lal to the benefits of the partnership was the continued free of interest use of the capital amount lying in Yudhisthir Lals account for the firm which was ensured to it by Cl. 6. In these circumstances there was direct and substantial nexus between the share income earned by and allocated to the three minor sons and the family funds that remained with and were utitlized by the firm and hence the share income would not be their individual income but the income of the Hindu undivided family. 9. Turning to the legal aspect of the question it is unnecessary to refer to the several decisions cited at the bar but a reference to only one decision of this Court in Raj Kumars case (AIR 1971 SC 1454 ) (supra) will suffice. It is true that the question that arose for determination before this Court in that case was whether the Managing Directors remuneration received from the company by the Karta of a Hindu undivided family was assessable to tax as his individual income or as the income of Hindu undivided family. But this Court, after discussing the entire previous case law on the subject laid down certain tests and guidelines which would cover the question raised in this appeal before us. From the earlier decisions this Court culled out some tests which were described as subsidiary tests or subsidiary principals and then indicated a broader test or principle which would be of general application. At pages 43-44 of the report, this Court has observed thus (at pp. 1460, 1461 of AIR):"The other tests enumerated are : (1) whether the income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds : (2) whether the income received was directly related to any utilization of family assets; (3) whether the family had suffered any detriment in the process of the family funds; and (4) whether the income was received with the aid and assistance of the family funds." In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family." 10. In the instant case the question raised before us gets easily answered by applying the subsidiary principles indicated at Nos. 2, 3 and 4 above as well as by applying the broader principle indicated above. There can be no doubt that the share income that was received by the three minor sons during the relevant period was earned with the aid and assistance of Hindu undivided family funds and was directly related to the utilization of such funds by the firm and further that Hindu undivided family had suffered detriment in the process of realisation of such income inasmuch as the capital amount lying to the credit of deceased Yudhisthir Lal was utilized by the firm free of interest. Further in this case there was no question of any services being rendered by the three minors and therefore the share income received by them must, in substance, be regarded as a return made to the family because of the investment of family funds in the business. In our view, therefore, the taxing authorities as also the Tribunal and the High Court were right in assessing the said income in the hands of the Hindu undivided family assessee : | 0[ds]8. Dealing with the factual aspect of the question we shall first indicate the broad and undisputed facts that emerge clearly on the record. Admittedly, deceased Yudhisthir Lal represented the Hindu undivided family as its Karta in the firm of M/s. Grand Smithy Works right up to the time of his death and his share of 36% in the profits of the firm was always assessed as the income of the Hindu undivided family. It is not disputed that on his death on December, 18, 1967 the family continued to be joint, and as per Cl. 13 of the partnership deed dated September 20, 1961, the heirs of Yudhisthir Lal were given the option of joining the partnership firm but by two letters both dated January 11, 1968, the widow and the four major daughters declined the offer; instead the three minor sons were admitted to the benefits of the partnership each one getting 14% share in the profits and a new deed of partnership dated January 11, 1968 was executed by surviving partners having retrospective effect as from December 19, 1967. Since strong reliance was placed by counsel for the appellant on these two letters of disclaimer it would be desirable to note what exactly was disclaimed under these two letters. The four major daughters categorically stated that "we do not intend to exercise our option to become partners and decline to be partners with you in M/s. Grand Smithy Works". The widow stated :"Now I am a widow with minor sons and minor daughters. I already understand that the amount of capital lying to the credit of H. U. F. in the firm exceeds the liability of the H. U. F. In the circumstances I am not willing to join the partnership business on my behalf and on the behalf of the H. U. F."It will thus be clear that by these two letters all that the widow and the daughters did was that they declined to become partners in the firm presumably because none wanted to take the risk of being held liable for the losses the firm might incur, but it would be significant to note that none of the heirs disclaimed or relinquished his or her right to claim the share, right, title and interest of deceased Yudhisthir Lal in the partnership firm and its assets. In fact no demand for the return of the capital amount lying to the credit of Yudhisthir Lals account, which admittedly stood at 10,00,000, was made by any of the heirs from the date of Yudhisthir Lals death till the date of the new deed; on the other hand Cl. 6 of the new deed runs thus :"6. That the capital of the partnership shall be the amount as will be found to the credit of the Parties Hereto of the First (Shiv Charan Laul), Second (Ram Gopal Garodia) Third (Tola Ram Budhia) Parts and the said Yudhisthir Lal Agarwalla since deceased."What is more, there is no provision for payment of interest on the respective amount of capital lying to the credit of three surviving partners and the deceased Yudhisthir Lal. In our view Cl. 6 is a tell tale clause which carries its own tale that this new partnership agreement containing such a term could not have come about without the assent and agreement on the part of the widow on behalf of the Hindu undivided family. Further the factual interest free retention and utilization of the said capital amount of the Hindu undivided family by the firm for the entire relevant period i.e. from December 19,1967toAugust 31, 1968 - presumably pursuanttothe said clause - clinches the said inference. It is true that the widow is not ao thenew deed of partnership; it is also true that the three minor sons could not in law be regarded as the nominees or benamidars of the Hindu undivided family in the firm, but the facts and circumstances discussed above, especially the incorporation of a term like Cl. 6 in the new deed and the factual interest free retention and utilization of the Hindu undivided familys funds for the relevant period by the firm clearly leadtothe inference that the new partnership under the deed dated January 11, 1968 was brought about with the tacit assent and agreement on the part of the widow representing the Hindu undivided family and that the quid pro quo for admitting the three minor sons of Yudhisthir Laltothe benefits of the partnership was the continued free of interest use of the capital amount lying in Yudhisthir Lals account for the firm which was ensuredtoit by Cl. 6. In these circumstances there was direct and substantial nexus between the share income earned by and allocatedtothe three minor sons and the family funds that remained with and were utitlized by the firm and hence the share income would not be their individual income but the income of the Hindu undivided family9. Turningtothe legal aspect of the question it is unnecessarytorefertothe several decisions cited at the bar but aonly one decision of this Court in Raj Kumars case (AIR 1971 SC 1454 ) (supra) will suffice. It is true that the question that arose for determination before this Court in that case was whether the Managings remuneration received from the company by the Karta of a Hindu undivided family was assessabletotax as his individual income or as the income of Hindu undivided family. But this Court, after discussing the entire previous case law on the subject laid down certain tests and guidelines which would cover the question raised in this appeal before us. From the earlier decisions this Court culled out some tests which were described as subsidiary tests or subsidiary principals and then indicated a broader test or principle which would be of general application. At pages 43-44 of the report, this Court has observed thus (at pp. 1460, 1461 of AIR):"The other tests enumerated are :(1) whether the income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds :(2) whether the income received was directly relatedtoany utilization of family assets;(3) whether the family had suffered any detriment in the process of the family funds; and(4) whether the income was received with the aid and assistance of the family fundsIn our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return madetothe family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family."10. In the instant case the question raised before us gets easily answered by applying the subsidiary principles indicated at Nos. 2, 3 and 4 above as well as by applying the broader principle indicated above. There can be no doubt that the share income that was received by the three minor sons during the relevant period was earned with the aid and assistance of Hindu undivided family funds and was directly relatedtothe utilization of such funds by the firm and further that Hindu undivided family had suffered detriment in the process of realisation of such income inasmuch as the capital amount lyingtothe credit of deceased Yudhisthir Lal was utilized by the firm free of interest. Further in this case there was no question of any services being rendered by the three minors and therefore the share income received by them must, in substance, be regarded as a return madetothe family because of the investment of family funds in the business. In our view, therefore, the taxing authorities asalsothe Tribunal and the High Courtwere right in assessing the said income in the hands of the Hindu undivided family assessee : | 0 | 3,858 | 1,554 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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and the said Yudhisthir Lal Agarwalla since deceased." What is more, there is no provision for payment of interest on the respective amount of capital lying to the credit of three surviving partners and the deceased Yudhisthir Lal. In our view Cl. 6 is a tell tale clause which carries its own tale that this new partnership agreement containing such a term could not have come about without the assent and agreement on the part of the widow on behalf of the Hindu undivided family. Further the factual interest free retention and utilization of the said capital amount of the Hindu undivided family by the firm for the entire relevant period i.e. from December 19, 1967 to August 31, 1968 - presumably pursuant to the said clause - clinches the said inference. It is true that the widow is not a signatory to the new deed of partnership; it is also true that the three minor sons could not in law be regarded as the nominees or benamidars of the Hindu undivided family in the firm, but the facts and circumstances discussed above, especially the incorporation of a term like Cl. 6 in the new deed and the factual interest free retention and utilization of the Hindu undivided familys funds for the relevant period by the firm clearly lead to the inference that the new partnership under the deed dated January 11, 1968 was brought about with the tacit assent and agreement on the part of the widow representing the Hindu undivided family and that the quid pro quo for admitting the three minor sons of Yudhisthir Lal to the benefits of the partnership was the continued free of interest use of the capital amount lying in Yudhisthir Lals account for the firm which was ensured to it by Cl. 6. In these circumstances there was direct and substantial nexus between the share income earned by and allocated to the three minor sons and the family funds that remained with and were utitlized by the firm and hence the share income would not be their individual income but the income of the Hindu undivided family. 9. Turning to the legal aspect of the question it is unnecessary to refer to the several decisions cited at the bar but a reference to only one decision of this Court in Raj Kumars case (AIR 1971 SC 1454 ) (supra) will suffice. It is true that the question that arose for determination before this Court in that case was whether the Managing Directors remuneration received from the company by the Karta of a Hindu undivided family was assessable to tax as his individual income or as the income of Hindu undivided family. But this Court, after discussing the entire previous case law on the subject laid down certain tests and guidelines which would cover the question raised in this appeal before us. From the earlier decisions this Court culled out some tests which were described as subsidiary tests or subsidiary principals and then indicated a broader test or principle which would be of general application. At pages 43-44 of the report, this Court has observed thus (at pp. 1460, 1461 of AIR):"The other tests enumerated are : (1) whether the income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds : (2) whether the income received was directly related to any utilization of family assets; (3) whether the family had suffered any detriment in the process of the family funds; and (4) whether the income was received with the aid and assistance of the family funds." In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family." 10. In the instant case the question raised before us gets easily answered by applying the subsidiary principles indicated at Nos. 2, 3 and 4 above as well as by applying the broader principle indicated above. There can be no doubt that the share income that was received by the three minor sons during the relevant period was earned with the aid and assistance of Hindu undivided family funds and was directly related to the utilization of such funds by the firm and further that Hindu undivided family had suffered detriment in the process of realisation of such income inasmuch as the capital amount lying to the credit of deceased Yudhisthir Lal was utilized by the firm free of interest. Further in this case there was no question of any services being rendered by the three minors and therefore the share income received by them must, in substance, be regarded as a return made to the family because of the investment of family funds in the business. In our view, therefore, the taxing authorities as also the Tribunal and the High Court were right in assessing the said income in the hands of the Hindu undivided family assessee :
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other hand Cl. 6 of the new deed runs thus :"6. That the capital of the partnership shall be the amount as will be found to the credit of the Parties Hereto of the First (Shiv Charan Laul), Second (Ram Gopal Garodia) Third (Tola Ram Budhia) Parts and the said Yudhisthir Lal Agarwalla since deceased."What is more, there is no provision for payment of interest on the respective amount of capital lying to the credit of three surviving partners and the deceased Yudhisthir Lal. In our view Cl. 6 is a tell tale clause which carries its own tale that this new partnership agreement containing such a term could not have come about without the assent and agreement on the part of the widow on behalf of the Hindu undivided family. Further the factual interest free retention and utilization of the said capital amount of the Hindu undivided family by the firm for the entire relevant period i.e. from December 19,1967toAugust 31, 1968 - presumably pursuanttothe said clause - clinches the said inference. It is true that the widow is not ao thenew deed of partnership; it is also true that the three minor sons could not in law be regarded as the nominees or benamidars of the Hindu undivided family in the firm, but the facts and circumstances discussed above, especially the incorporation of a term like Cl. 6 in the new deed and the factual interest free retention and utilization of the Hindu undivided familys funds for the relevant period by the firm clearly leadtothe inference that the new partnership under the deed dated January 11, 1968 was brought about with the tacit assent and agreement on the part of the widow representing the Hindu undivided family and that the quid pro quo for admitting the three minor sons of Yudhisthir Laltothe benefits of the partnership was the continued free of interest use of the capital amount lying in Yudhisthir Lals account for the firm which was ensuredtoit by Cl. 6. In these circumstances there was direct and substantial nexus between the share income earned by and allocatedtothe three minor sons and the family funds that remained with and were utitlized by the firm and hence the share income would not be their individual income but the income of the Hindu undivided family9. Turningtothe legal aspect of the question it is unnecessarytorefertothe several decisions cited at the bar but aonly one decision of this Court in Raj Kumars case (AIR 1971 SC 1454 ) (supra) will suffice. It is true that the question that arose for determination before this Court in that case was whether the Managings remuneration received from the company by the Karta of a Hindu undivided family was assessabletotax as his individual income or as the income of Hindu undivided family. But this Court, after discussing the entire previous case law on the subject laid down certain tests and guidelines which would cover the question raised in this appeal before us. From the earlier decisions this Court culled out some tests which were described as subsidiary tests or subsidiary principals and then indicated a broader test or principle which would be of general application. At pages 43-44 of the report, this Court has observed thus (at pp. 1460, 1461 of AIR):"The other tests enumerated are :(1) whether the income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds :(2) whether the income received was directly relatedtoany utilization of family assets;(3) whether the family had suffered any detriment in the process of the family funds; and(4) whether the income was received with the aid and assistance of the family fundsIn our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return madetothe family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family."10. In the instant case the question raised before us gets easily answered by applying the subsidiary principles indicated at Nos. 2, 3 and 4 above as well as by applying the broader principle indicated above. There can be no doubt that the share income that was received by the three minor sons during the relevant period was earned with the aid and assistance of Hindu undivided family funds and was directly relatedtothe utilization of such funds by the firm and further that Hindu undivided family had suffered detriment in the process of realisation of such income inasmuch as the capital amount lyingtothe credit of deceased Yudhisthir Lal was utilized by the firm free of interest. Further in this case there was no question of any services being rendered by the three minors and therefore the share income received by them must, in substance, be regarded as a return madetothe family because of the investment of family funds in the business. In our view, therefore, the taxing authorities asalsothe Tribunal and the High Courtwere right in assessing the said income in the hands of the Hindu undivided family assessee :
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Vellore Electric Corporation Ltd. and Ors Vs. Commissioner of Income Tax | industry. 18. In English Electric Co. of India Ltd. vs. CIT (supra), the assessee had received interest from supplies of raw materials, the State Electricity Board, banks as well as on security deposits with other agencies. The Madras High Court, while following its earlier decision in Universal Radiators (P) Ltd. (supra) and the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. (supra), has held that in so far as the interest received from bank deposits was concerned, the same could not be attributable to the priority industry itself but as regards interest earned on other deposits, the High Court held that they were in the nature of security deposits for the purpose of contracts by the assessee-company and in case of interest received from supply of raw materials, the same was received because the raw materials were not supplied at all and the advance receipts were returned with interest which had a direct nexus with the business of the priority industry and that when the company had to keep security deposits such deposits were necessary for the purpose of its business and any such interest obtained from such deposits would be clearly attributable to priority industry. This decision indicates that in a case where the security deposit is necessary for the purpose of business of the assessee, then the interest obtained therefrom can be said to be attributable to the priority industry. 19. To the same effect is the decision of the Calcutta High Court in CIT vs. Dunlop India Ltd. [1992] 197 ITR 34 (Cal) : [1992] 197 ITR 34 (Cal) In this case deposits were made by the assessee with the Excise Department for obtaining manufacturing facilities under the central excise laws and with the electricity boards in West Bengal and Tamil Nadu for the purpose of obtaining industrial power connections. It was held that these deposits made were incidental to and for the purpose of carrying on the business of priority industry and the interest receipts earned from these securities had to be treated as part of the profits and gains attributable to a priority industry under s. 80-I of the Act. 20. The position that emerges from these decisions is that profits and gains can be said to be attributable to the priority industry under s. 80-I if there is a direct and proximate connection between the profits and gains and the business of the priority industry. In this context, reference may be made to the recent decision in Indian Leather Corpn. (P) Ltd. vs. CIT (CA No. 292 of 1982 decided on 30th April, 1997). This Court, while construing the words Income attributable to any of the aforesaid activities in s. 104(4) of the Act, has said : In order that income can be said to be attributable to manufacture or processing of goods for the purpose of Expln. to s. 104(4) of the Act the earning of the income must be directly connected with manufacture or processing of goods. 21. In the present case, the assessee is carrying on business of generating electricity as a licensee under the Electricity Supply Act. Under s. 57 of the Electricity Supply Act the provisions of the Sixth Sch. shall be deemed to be incorporated in the license of every licensee. Under paragraph III of the Sixth Sch., the licensee is obliged to create from existing reserves or from the revenues of the undertaking a reserve called Contingencies Reserve and under sub-para (2) of paragraph IV the licensee is obliged to invest the sums appropriated to the Contingencies Reserve in securities authorised under the Indian Trusts Act, 1882. The requirement to create the Contingencies Reserve is a part of the obligation of the assessee as a licensee to carry on its business of generating electricity and it is also part of the obligation of assessee as a licensee that the sums appropriated to the Contingencies Reserve are invested in securities authorised under the Indian Trusts Act, 1882. In Cambay Electric Supply Industrial Co. Ltd. (supra) this Court has said : In our view, since the expression of wider import, namely, attributable to, has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. This would mean that it is not necessary that the income should have been earned from the actual conduct of the business of generation and distribution of electricity. What is required is that the activity from which the income is earned must have a direct and proximate connection with the priority industry of generation and distribution of electricity. The creation of the Contingencies Reserve and the investment of the sums appropriated to the said Reserve in security authorised under the Indian Trust Act, 1882, being a condition statutorily incorporated in the license granted to the assessee under the Electricity Supply Act, is incidental to the carrying on of the business of generation and distribution of electricity by the assessee. There is thus a direct and proximate connection between the carrying on the business of generation and distribution of electricity by the assessee as a licensee under the Electricity Supply Act and the income derived by way of interest from the investments in securities of the sums appropriated to the Contingencies Reserve as required under the provisions of the Sixth Sch. to the Electricity Supply Act which is one of the conditions of license on the basis of which the assessee can carry on its business of generating and distributing electricity. We are, therefore, of the view that the income earned by way of interest on the sums appropriated to the Contingencies Reserve which have been invested in securities can be said to be profits and gains attributable to the business of the assessee for the purpose of s. 80-I of the Act. Question No. 3 in Civil Appeals Nos. 2613-14 of 1984 is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue. | 0[ds]4. As indicated earlier, the assessee is a licensee under the Electricity Supply Act for the purpose of distribution of power. Under s. 57 of the Electricity Supply Act the provisions of the Sixth Sch. are deemed to be incorporated in the licence of a licensee, not being a local authority and the licensee is required to comply with the provisions of the said Schedule. The Sixth Sch. contains the financial principles and their application5. In Poona Electric Supply Co. Ltd. vs. CIT [1965] 57 ITR 521 (SC) this Court has laid that the amounts credited to the Consumers Rebate Reserve account did not form part of the real profits of the appellant-company and in order to arrive at the taxable income of the appellant-company from business under s. 10(1) of the Indian IT Act, 1922, the said amounts had to be deducted.6. As regards Contingencies Reserve, there was difference of opinion among the various High Courts. The High Courts of Madras [Vellore Electric Corpn. Ltd. (supra)] and Calcutta CIT vs. Sijua (Jharriah) Electric Supply Co. Ltd. [1984] 145 ITR 740 (Cal) had taken the view that deduction could not be claimed in respect of the amounts appropriated to the Contingencies Reserve. The High Courts of Kerala [Cochin State Power & Light Corpn. Ltd. vs. CIT [1974] 93 ITR 582 (Ker) ] Bombay [Amalgamated Electricity Co. Ltd. vs. CIT [1974] 97 ITR 334 (Bom) and Patna [Darbhanga Laheriasari Electric Supply Corpn. Ltd. vs. CIT [1979] 117 ITR 516 (Patna) ] had taken a contrary view and had held that deduction could be claimed in respect of the amounts appropriated to the Contingencies Reserve. For the purpose of wealth-tax, the Bombay High Court in CWT vs. Bombay Suburban Electric Supply Ltd. [1976] 103 ITR 384 (Bom) , had held the amount standing to the credit of the Contingencies Reserve is a part of the assets belonging to the assessee and is includible in the net wealth of the assessee and is chargeable to wealth-tax. This conflict in the views of the High Courts with regard to taxability of the amounts appropriated to Contingencies Reserve was resolved by this Court in Associated Power Co. Ltd. vs. CIT [1996] 218 ITR 195 (SC) wherein the decisions of the High Courts of Madras and Calcutta referred to above have been approved and the decisions of the High Courts of Kerala and Bombay mentioned above have been overruled. It has been held that Contingencies Reserve is to be created from existing reserves or from the revenues of the undertaking which indicates that the monies which have to be put into the Contingencies Reserve reach the electricity company and it is the electricity company which has to invest the sums appropriated to the Contingencies Reserve. It has been pointed out that contingencies Reserve differs from Consumers Benefit Reserve since the amount appropriated in the Consumers Benefit Reserve has to be returned to the consumers and it is as if the electricity company had not received that amount which it is obliged to return and that the position is altogether different in the case of monies standing to the credit of the Contingencies Reserve which are set apart to be utilised by the electricity company for the purposes set out in paragraph V of the Sixth Sch. to the Electricity Supply Act which are the expenses which the electricity company has to incur and that the reservation is made so that money is always available for meeting these expenses and the supply of electricity is not interrupted. It was held that the monies in the Contingencies Reserve belong to the electricity company. In view of the decision of this Court in Associated Power Co. Ltd. (supra), it must be held that question No. 1 in Civil Appeals Nos. 2613-14 of 1984 relating to Contingencies Reserve has been rightly answered against the assessee and in favour of the Revenue by the High Court.A perusal of the said provisions would indicate that the main part of the sub-para (2) of Paragraph V and sub-para (4) of paragraph VA are practically the same. There is difference in the proviso to the said provisions. Under the proviso to sub-para (2) of paragraph V where the undertaking is purchased by the State Electricity Board or the State Government the amount of the Contingencies Reserve after further deduction of the amount of compensation, if any, payable to the employees the outgoing licensee under any law for the time being in force, has to be handed over to the Electricity Board or the State Government as the case may be. Under the proviso to sub-para (4) of paragraph VA where the undertaking is purchased by the State Electricity Board or the State Government the amount of Development Reserve has to be deducted from the price payable to the licensee. This difference in the two provisions does not, in our opinion, mean that the amounts appropriated to Development Reserve were not part of the real profit of the electricity company. Like Contingencies Reserve, Development Reserve also belonged to the electricity company and it had the use of it. The Contingencies Reserve is meant to be utilised by the electricity company to meet the expenses or recoup loss of profits arising out of accidents, strikes or other circumstances which the electricity company could not have promoted or to meet the expenses on replacement or renewal of plant or works or for payment of compensation required by law for which no other provision has been made. Development Reserve is meant for investment in the business of electricity supply of the undertaking. On the purchase of the undertaking Contingencies Reserve, as well as Development Reserve have to be handed over to the purchaser and have to be maintained as Contingencies Reserve and Development Reserve as the case may be, in view of the main part of sub-para (2) of paragraph V and sub-para (4) of paragraph VA. Under the proviso to sub-para (2) of paragraph V where the undertaking is purchased by the Electricity Board or the State Government the amount of Contingencies Reserve, after the deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee, is to be handed over to the Electricity Board or the State Government, as the case may be. Under sub-para (4) of paragraph VA the amount of Development Reserve, instead of being handed over to the Electricity Board or the State Government, can be deducted from the price payable to the licensee. Both the provisions achieve the same result, viz., the Reserve being available to the State Electricity Board or the State Government. The difference in the language in the provisos in sub-para (2) of paragraph V and sub-para (4) of paragraph VA may be due to the fact that the liability for the payment of compensation payable to the employees of the outgoing licensee would be of the licensee and the said liability has to be met out of the Contingencies Reserve in view of paragraph V(1)(c) of the Sixth Sch. and the amount of Contingencies Reserve is to be handed over after deducting the amount of compensation so payable by the licensee.There is, therefore, no difference between Development Reserve and Contingencies Reserve and the High Court, in the impugned judgment, has rightly held that the amount appropriated towards Development Reserve could not be deducted.10. Provisions regarding Tariffs and Dividend Control Reserve are contained in sub-paras (1), (2) and (3) of paragraph II of the Sixth Sch. The said provisions are practically in the same terms as those contained in paragraph VA relating to Development Reserve. Sub-para (2) of paragraph II requires that the Tariffs and Dividend Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account. Under sub-para (3) of paragraph II on the purchase of the undertaking under the terms of license any balance remaining in the Tariffs and Dividend Control Reserve has to be handed over to the purchaser and has to be maintained as such Tariffs and Dividend Control Reserve and where the undertaking is purchased by the State Electricity Board or the State Government the amount of the Tariffs and Dividend Control Reserve may be deducted from the price payable to the licensee. The reasons given for holding that the amounts appropriated to Development Reserve could not be deducted are equally applicable to Tariffs and Dividend Control Reserve and it must, therefore, held that the amounts appropriated to the Tariffs and Dividend Control Reserve could not be deducted.It must, therefore, he held that the question referred in Civil Appeals Nos. 3333-3334 of 1981 and question No. 2 referred in Civil Appeals Nos. 2613-14 of 1984 have been rightly answered against the assessee and in favour of the Revenue by the High Court in the impugned judgments.14. In Indian Aluminium Co. Ltd. vs. CIT (supra) the assessee was carrying on business as manufacturer of aluminium. Income by way of interest had accrued from the surplus funds of the assessee that had been invested for short periods. It was held by the Calcutta High Court that no part of the interest accruing from company investments of surplus funds can be said to be attributable to the priority industry of the assessee and that such interest had arisen by reason of the surplus fund being not employed in the priority industry and that such temporary investment had not been shown to have any connection whatsoever direct or indirect with the priority industry of the assessee.15. In CIT vs. Universal Radiators (P) Ltd. (supra) the assessee had surplus funds which it had invested in the bank in fixed deposit and thereafter when the assessee wanted money from the bank on the security of the said fixed deposit, amounts were lent by the bank. After observing that the Court was concerned with the deposit having nexus with the priority industry at the stage at which the amount were deposited in the bank and started earning interest, the Madras High Court held that, considering the question of the interest income at the stage at which the deposit was made, the use of the receipt as security does not make the income that of the priority industry. The High Court has referred to the impugned judgment Addl. CIT vs. Vellore Electric Corpn. Ltd. [which had since been reported in [1979] 119 ITR 523 (Mad) : [1979] 119 ITR 523 (Mad) and after taking note of the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. (supra), the High Court has said :In the context of the pronouncement of the Supreme Court, the view taken by this Court that the profits and gains must arise from the specific activities or business of generation of electricity may have to be reconsidered. As attributable to is wider than derived from, the relief is not confined only to the profits of the priority industry strictly so called. It would have a wider ambit. However, the conclusion arrived at in that case is unexceptionable because the character of the interest is different from the character of the income attributable to the priority industry.20. The position that emerges from these decisions is that profits and gains can be said to be attributable to the priority industry under s. 80-I if there is a direct and proximate connection between the profits and gains and the business of the priority industry. In this context, reference may be made to the recent decision in Indian Leather Corpn. (P) Ltd. vs. CIT (CA No. 292 of 1982 decided on 30th April, 1997). This Court, while construing the words Income attributable to any of the aforesaid activities in s. 104(4) of the Act, has said :In order that income can be said to be attributable to manufacture or processing of goods for the purpose of Expln. to s. 104(4) of the Act the earning of the income must be directly connected with manufacture or processing of goods.21. In the present case, the assessee is carrying on business of generating electricity as a licensee under the Electricity Supply Act. Under s. 57 of the Electricity Supply Act the provisions of the Sixth Sch. shall be deemed to be incorporated in the license of every licensee. Under paragraph III of the Sixth Sch., the licensee is obliged to create from existing reserves or from the revenues of the undertaking a reserve called Contingencies Reserve and under sub-para (2) of paragraph IV the licensee is obliged to invest the sums appropriated to the Contingencies Reserve in securities authorised under the Indian Trusts Act, 1882. The requirement to create the Contingencies Reserve is a part of the obligation of the assessee as a licensee to carry on its business of generating electricity and it is also part of the obligation of assessee as a licensee that the sums appropriated to the Contingencies Reserve are invested in securities authorised under the Indian Trusts Act, 1882. In Cambay Electric Supply Industrial Co. Ltd. (supra) this Court has said :In our view, since the expression of wider import, namely, attributable to, has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity.This would mean that it is not necessary that the income should have been earned from the actual conduct of the business of generation and distribution of electricity. What is required is that the activity from which the income is earned must have a direct and proximate connection with the priority industry of generation and distribution of electricity. The creation of the Contingencies Reserve and the investment of the sums appropriated to the said Reserve in security authorised under the Indian Trust Act, 1882, being a condition statutorily incorporated in the license granted to the assessee under the Electricity Supply Act, is incidental to the carrying on of the business of generation and distribution of electricity by the assessee. There is thus a direct and proximate connection between the carrying on the business of generation and distribution of electricity by the assessee as a licensee under the Electricity Supply Act and the income derived by way of interest from the investments in securities of the sums appropriated to the Contingencies Reserve as required under the provisions of the Sixth Sch. to the Electricity Supply Act which is one of the conditions of license on the basis of which the assessee can carry on its business of generating and distributing electricity. We are, therefore, of the view that the income earned by way of interest on the sums appropriated to the Contingencies Reserve which have been invested in securities can be said to be profits and gains attributable to the business of the assessee for the purpose of s. 80-I of the Act. Question No. 3 in Civil Appeals Nos. 2613-14 of 1984 is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue. | 0 | 7,590 | 2,764 | ### Instruction:
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industry. 18. In English Electric Co. of India Ltd. vs. CIT (supra), the assessee had received interest from supplies of raw materials, the State Electricity Board, banks as well as on security deposits with other agencies. The Madras High Court, while following its earlier decision in Universal Radiators (P) Ltd. (supra) and the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. (supra), has held that in so far as the interest received from bank deposits was concerned, the same could not be attributable to the priority industry itself but as regards interest earned on other deposits, the High Court held that they were in the nature of security deposits for the purpose of contracts by the assessee-company and in case of interest received from supply of raw materials, the same was received because the raw materials were not supplied at all and the advance receipts were returned with interest which had a direct nexus with the business of the priority industry and that when the company had to keep security deposits such deposits were necessary for the purpose of its business and any such interest obtained from such deposits would be clearly attributable to priority industry. This decision indicates that in a case where the security deposit is necessary for the purpose of business of the assessee, then the interest obtained therefrom can be said to be attributable to the priority industry. 19. To the same effect is the decision of the Calcutta High Court in CIT vs. Dunlop India Ltd. [1992] 197 ITR 34 (Cal) : [1992] 197 ITR 34 (Cal) In this case deposits were made by the assessee with the Excise Department for obtaining manufacturing facilities under the central excise laws and with the electricity boards in West Bengal and Tamil Nadu for the purpose of obtaining industrial power connections. It was held that these deposits made were incidental to and for the purpose of carrying on the business of priority industry and the interest receipts earned from these securities had to be treated as part of the profits and gains attributable to a priority industry under s. 80-I of the Act. 20. The position that emerges from these decisions is that profits and gains can be said to be attributable to the priority industry under s. 80-I if there is a direct and proximate connection between the profits and gains and the business of the priority industry. In this context, reference may be made to the recent decision in Indian Leather Corpn. (P) Ltd. vs. CIT (CA No. 292 of 1982 decided on 30th April, 1997). This Court, while construing the words Income attributable to any of the aforesaid activities in s. 104(4) of the Act, has said : In order that income can be said to be attributable to manufacture or processing of goods for the purpose of Expln. to s. 104(4) of the Act the earning of the income must be directly connected with manufacture or processing of goods. 21. In the present case, the assessee is carrying on business of generating electricity as a licensee under the Electricity Supply Act. Under s. 57 of the Electricity Supply Act the provisions of the Sixth Sch. shall be deemed to be incorporated in the license of every licensee. Under paragraph III of the Sixth Sch., the licensee is obliged to create from existing reserves or from the revenues of the undertaking a reserve called Contingencies Reserve and under sub-para (2) of paragraph IV the licensee is obliged to invest the sums appropriated to the Contingencies Reserve in securities authorised under the Indian Trusts Act, 1882. The requirement to create the Contingencies Reserve is a part of the obligation of the assessee as a licensee to carry on its business of generating electricity and it is also part of the obligation of assessee as a licensee that the sums appropriated to the Contingencies Reserve are invested in securities authorised under the Indian Trusts Act, 1882. In Cambay Electric Supply Industrial Co. Ltd. (supra) this Court has said : In our view, since the expression of wider import, namely, attributable to, has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. This would mean that it is not necessary that the income should have been earned from the actual conduct of the business of generation and distribution of electricity. What is required is that the activity from which the income is earned must have a direct and proximate connection with the priority industry of generation and distribution of electricity. The creation of the Contingencies Reserve and the investment of the sums appropriated to the said Reserve in security authorised under the Indian Trust Act, 1882, being a condition statutorily incorporated in the license granted to the assessee under the Electricity Supply Act, is incidental to the carrying on of the business of generation and distribution of electricity by the assessee. There is thus a direct and proximate connection between the carrying on the business of generation and distribution of electricity by the assessee as a licensee under the Electricity Supply Act and the income derived by way of interest from the investments in securities of the sums appropriated to the Contingencies Reserve as required under the provisions of the Sixth Sch. to the Electricity Supply Act which is one of the conditions of license on the basis of which the assessee can carry on its business of generating and distributing electricity. We are, therefore, of the view that the income earned by way of interest on the sums appropriated to the Contingencies Reserve which have been invested in securities can be said to be profits and gains attributable to the business of the assessee for the purpose of s. 80-I of the Act. Question No. 3 in Civil Appeals Nos. 2613-14 of 1984 is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue.
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accrued from the surplus funds of the assessee that had been invested for short periods. It was held by the Calcutta High Court that no part of the interest accruing from company investments of surplus funds can be said to be attributable to the priority industry of the assessee and that such interest had arisen by reason of the surplus fund being not employed in the priority industry and that such temporary investment had not been shown to have any connection whatsoever direct or indirect with the priority industry of the assessee.15. In CIT vs. Universal Radiators (P) Ltd. (supra) the assessee had surplus funds which it had invested in the bank in fixed deposit and thereafter when the assessee wanted money from the bank on the security of the said fixed deposit, amounts were lent by the bank. After observing that the Court was concerned with the deposit having nexus with the priority industry at the stage at which the amount were deposited in the bank and started earning interest, the Madras High Court held that, considering the question of the interest income at the stage at which the deposit was made, the use of the receipt as security does not make the income that of the priority industry. The High Court has referred to the impugned judgment Addl. CIT vs. Vellore Electric Corpn. Ltd. [which had since been reported in [1979] 119 ITR 523 (Mad) : [1979] 119 ITR 523 (Mad) and after taking note of the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. (supra), the High Court has said :In the context of the pronouncement of the Supreme Court, the view taken by this Court that the profits and gains must arise from the specific activities or business of generation of electricity may have to be reconsidered. As attributable to is wider than derived from, the relief is not confined only to the profits of the priority industry strictly so called. It would have a wider ambit. However, the conclusion arrived at in that case is unexceptionable because the character of the interest is different from the character of the income attributable to the priority industry.20. The position that emerges from these decisions is that profits and gains can be said to be attributable to the priority industry under s. 80-I if there is a direct and proximate connection between the profits and gains and the business of the priority industry. In this context, reference may be made to the recent decision in Indian Leather Corpn. (P) Ltd. vs. CIT (CA No. 292 of 1982 decided on 30th April, 1997). This Court, while construing the words Income attributable to any of the aforesaid activities in s. 104(4) of the Act, has said :In order that income can be said to be attributable to manufacture or processing of goods for the purpose of Expln. to s. 104(4) of the Act the earning of the income must be directly connected with manufacture or processing of goods.21. In the present case, the assessee is carrying on business of generating electricity as a licensee under the Electricity Supply Act. Under s. 57 of the Electricity Supply Act the provisions of the Sixth Sch. shall be deemed to be incorporated in the license of every licensee. Under paragraph III of the Sixth Sch., the licensee is obliged to create from existing reserves or from the revenues of the undertaking a reserve called Contingencies Reserve and under sub-para (2) of paragraph IV the licensee is obliged to invest the sums appropriated to the Contingencies Reserve in securities authorised under the Indian Trusts Act, 1882. The requirement to create the Contingencies Reserve is a part of the obligation of the assessee as a licensee to carry on its business of generating electricity and it is also part of the obligation of assessee as a licensee that the sums appropriated to the Contingencies Reserve are invested in securities authorised under the Indian Trusts Act, 1882. In Cambay Electric Supply Industrial Co. Ltd. (supra) this Court has said :In our view, since the expression of wider import, namely, attributable to, has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity.This would mean that it is not necessary that the income should have been earned from the actual conduct of the business of generation and distribution of electricity. What is required is that the activity from which the income is earned must have a direct and proximate connection with the priority industry of generation and distribution of electricity. The creation of the Contingencies Reserve and the investment of the sums appropriated to the said Reserve in security authorised under the Indian Trust Act, 1882, being a condition statutorily incorporated in the license granted to the assessee under the Electricity Supply Act, is incidental to the carrying on of the business of generation and distribution of electricity by the assessee. There is thus a direct and proximate connection between the carrying on the business of generation and distribution of electricity by the assessee as a licensee under the Electricity Supply Act and the income derived by way of interest from the investments in securities of the sums appropriated to the Contingencies Reserve as required under the provisions of the Sixth Sch. to the Electricity Supply Act which is one of the conditions of license on the basis of which the assessee can carry on its business of generating and distributing electricity. We are, therefore, of the view that the income earned by way of interest on the sums appropriated to the Contingencies Reserve which have been invested in securities can be said to be profits and gains attributable to the business of the assessee for the purpose of s. 80-I of the Act. Question No. 3 in Civil Appeals Nos. 2613-14 of 1984 is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue.
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Rajesh @ Raju Chandulal Gandhi & Another Vs. State of Gujarat | FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to give it a colour of prompt lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singhs case is of no help to him in the instant case inasmuch as all requisite details are mentioned in Panchanama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Exh. P-37 has not persuaded as to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove. 14. It has also been argued on behalf of the appellants that for withholding of opinion of finger print expert, adverse inference be drawn against the prosecution. It has come in evidence (Exh. 32) that finger print expert was present on spot who had taken the prints from the pieces of broken glass and some other articles lying in the farm of the deceased. It is also not disputed that the report of the finger print expert has not been produced in the case. The withholding of the report of the finger-print expert, if any, would definitely cast a doubt on the prosecution version and presumption of such report being against the prosecution has to be drawn. However, in the facts of the case we find that despite taking doubted finger prints from the spot, the investigating officer had not taken finger prints of any of the accused. The investigating officer has stated in the court that on 25.2.1993 total 31 items were sent for examination. In Exh. 64 there is a note at Item No. 9 of having sent broken pieces of glass at No.11 having found chance print had Item No. 12 of having found another chance print. The pieces of glass sent show that there was "B" group blood which was the blood group of the deceased. In the absence of the finger prints of the accused persons no finger print expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no finger prints for comparison were taken or sent; there is no possibility of any report of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the finger prints of the accused persons but merely because the finger print expert had taken some prints from the glasses would not justify in holding that there existed a comparative finger print expert report which was allegedly suppressed or withheld by the prosecution.15. Learned counsel then drew out attention to the fact that blood stains were found on a number of places in the house of the deceased which suggested that occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was including in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Exh. P31) which, according to the defence, probabilised that the deceased was indulging in Satta betting for riots by ante-social elements, with reference to riots of Ayodhya. He is stated to be living in the area where people belonging to muslim community lived. His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Exh. P.31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PW1 in his statement has admitted that a news was published in the newspaper that deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs. 10 lakhs. All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence.16. After going through the whole of the evidence, the other record produced in the case and the judgments of the trial court and the High Court we find no reason to interfere in the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced. 17. | 0[ds]The investigating officer has stated in the court that on 25.2.1993 total 31 items were sent for examination. In Exh. 64 there is a note at Item No. 9 of having sent broken pieces of glass at No.11 having found chance print had Item No. 12 of having found another chance print. The pieces of glass sent show that there was "B" group blood which was the blood group of the deceased. In the absence of the finger prints of the accused persons no finger print expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no finger prints for comparison were taken or sent; there is no possibility of any report of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the finger prints of the accused persons but merely because the finger print expert had taken some prints from the glasses would not justify in holding that there existed a comparative finger print expert report which was allegedly suppressed or withheld by the prosecution.15. Learned counsel then drew out attention to the fact that blood stains were found on a number of places in the house of the deceased which suggested that occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was including in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Exh. P31) which, according to the defence, probabilised that the deceased was indulging in Satta betting for riots by ante-social elements, with reference to riots of Ayodhya. He is stated to be living in the area where people belonging to muslim community lived. His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Exh. P.31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PW1 in his statement has admitted that a news was published in the newspaper that deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs. 10 lakhs. All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence.16. After going through the whole of the evidence, the other record produced in the case and the judgments of the trial court and the High Court we find no reason to interfere in the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced | 0 | 5,482 | 681 | ### 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:
FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to give it a colour of prompt lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singhs case is of no help to him in the instant case inasmuch as all requisite details are mentioned in Panchanama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Exh. P-37 has not persuaded as to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove. 14. It has also been argued on behalf of the appellants that for withholding of opinion of finger print expert, adverse inference be drawn against the prosecution. It has come in evidence (Exh. 32) that finger print expert was present on spot who had taken the prints from the pieces of broken glass and some other articles lying in the farm of the deceased. It is also not disputed that the report of the finger print expert has not been produced in the case. The withholding of the report of the finger-print expert, if any, would definitely cast a doubt on the prosecution version and presumption of such report being against the prosecution has to be drawn. However, in the facts of the case we find that despite taking doubted finger prints from the spot, the investigating officer had not taken finger prints of any of the accused. The investigating officer has stated in the court that on 25.2.1993 total 31 items were sent for examination. In Exh. 64 there is a note at Item No. 9 of having sent broken pieces of glass at No.11 having found chance print had Item No. 12 of having found another chance print. The pieces of glass sent show that there was "B" group blood which was the blood group of the deceased. In the absence of the finger prints of the accused persons no finger print expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no finger prints for comparison were taken or sent; there is no possibility of any report of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the finger prints of the accused persons but merely because the finger print expert had taken some prints from the glasses would not justify in holding that there existed a comparative finger print expert report which was allegedly suppressed or withheld by the prosecution.15. Learned counsel then drew out attention to the fact that blood stains were found on a number of places in the house of the deceased which suggested that occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was including in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Exh. P31) which, according to the defence, probabilised that the deceased was indulging in Satta betting for riots by ante-social elements, with reference to riots of Ayodhya. He is stated to be living in the area where people belonging to muslim community lived. His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Exh. P.31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PW1 in his statement has admitted that a news was published in the newspaper that deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs. 10 lakhs. All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence.16. After going through the whole of the evidence, the other record produced in the case and the judgments of the trial court and the High Court we find no reason to interfere in the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced. 17.
### Response:
0
### Explanation:
The investigating officer has stated in the court that on 25.2.1993 total 31 items were sent for examination. In Exh. 64 there is a note at Item No. 9 of having sent broken pieces of glass at No.11 having found chance print had Item No. 12 of having found another chance print. The pieces of glass sent show that there was "B" group blood which was the blood group of the deceased. In the absence of the finger prints of the accused persons no finger print expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no finger prints for comparison were taken or sent; there is no possibility of any report of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the finger prints of the accused persons but merely because the finger print expert had taken some prints from the glasses would not justify in holding that there existed a comparative finger print expert report which was allegedly suppressed or withheld by the prosecution.15. Learned counsel then drew out attention to the fact that blood stains were found on a number of places in the house of the deceased which suggested that occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was including in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Exh. P31) which, according to the defence, probabilised that the deceased was indulging in Satta betting for riots by ante-social elements, with reference to riots of Ayodhya. He is stated to be living in the area where people belonging to muslim community lived. His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Exh. P.31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PW1 in his statement has admitted that a news was published in the newspaper that deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs. 10 lakhs. All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence.16. After going through the whole of the evidence, the other record produced in the case and the judgments of the trial court and the High Court we find no reason to interfere in the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced
|
M/S. Hanil Era Textiles Ltd Vs. Oriental Insurance Co. Ltd. | of the respondent Insurance Company to show that the appellant had not taken effective steps to segregate the Blow-room cannot succeed.12. The respondent Insurance Company claimed the additional premium of Rs. 1,13,13,344/- on the basis of the recommendations of the Tariff Advisory Committee, and it seems that the Comptroller and Auditor General had also recommended that this additional premium should be paid by the appellant. According to the opinion of the Tariff Advisory Committee, the Blow-room was not segregated and the entire main factory, including the building and the Blow-room, was a single communicating structure and, therefore, premium at the higher rate of Rs. 11.73 per thousand should have been charged for the entire area and this higher rate of Rs. 11.73 was reduced to Rs. 8.9 per thousand by the Tariff Advisory Committee with effect from 1.4.1994. It was made clear that the revised lower rate of Rs. 8.9 per thousand would apply to the new business or renewals falling due on or after 1.4.1994. It is also the case of the respondent Insurance Company that the TAC-approved type Automatic Diversion System or Co-2 Flooding System in the Chute Feeding arrangement between the Blow-room and the Carding Section was not installed. It is pertinent to note that the appellant was never informed that these arrangements have to be made. The respondent Insurance Company has also not produced any correspondence to show that when the insurance policies in question were issued, the appellant was informed about these matters or th at the appellant refused to comply with these requirements. 13. Learned Author E.R. Hardy Evamy, in his book relating to Fire and Motor Insurance, 2nd Edition, on page 7, has observed : "The contract of fire insurance, like other contracts of insurance, differs from any ordinary contract in that it requires, throughout its existence, the utmost good faith (uberrima fides) to be observed on the part of both the insured and the insurers.In addition to the ordinary obligation, which exists in every contract that all representations made by the parties during the negotiations leading up to the contract shall be honestly made, it is an implied term of the contract of fire insurance that the person seeking the insurance shall communicate to the insurers all matters within his knowledge which are in fact material to the question of the insurance, and not merely all those which he believes to be material." 14. There is no case that the insured had suppressed any material, whereas the respondent Insurance company had not apprised the insured about the Automatic Diversion System or the Co-2 Flooding System in the Chute Feeding Arrangement. The special precautions to be made on the basis of the report of the TAC are generally matters within the knowledge of the insurers and the contract of insurance being a contract of utmost good faith, ordinarily, these matters should have been brought to the notice of the insured before the policy was issued in his favour. It is also important to note that the respondent Insurance Company did charge a higher rate of premium for the "Blow-room". There is nothing to indicate that it was done on a provisional basis or that the insured suppressed any material facts. In fact, the engineers of the respondent Insurance Company visited the appellants factory prior to the issuance of the policies and charged a higher rate of premium for the Blow-room. When premium is thus demanded and collected at a higher rate, it is an indication regarding the nature of the contract that subsists between the parties, namely, that the insurer was aware of the higher risks involved. In Halsburys Laws of England, Vol. 25, at para 458, the following observations are made : "The rate of premium in fact charged may give rise to important inferences. The materiality of a representation, which has been made, may be inferred from a reduced rate of premium being charged. Similarly, ignorance on the part of the insurers of some matter supposed to be well known may be inferred if they charge no more than the ordinary rate of premium, while an exceptionally high rate of premium may be indicative of their acceptance of the risk as hazardous without requiring disclosure of the precise facts making it so." 15. It is clear that the respondent Insurance Company recovered the premium at a higher rate for the Blow-room and this can only be on the basis of the acceptance of the fact that the Blow-room was a separate unit. Therefore, the contention of the respondent that the Blow-room and the rest of the area was a single communicating structure cannot be accepted.16. On reappraisal of the evidence, including various correspondences between the insured and the insurer, it is clear that the appellant had segregated the Blow-room from the rest of the area even prior to the occurrence of fire. The fact that the respondent charged a higher rate of premium after having inspected the premises, and the report of the Loss Prevention Association of India Ltd. that the Blow-room was segregated by means of double fire-proof doors and the fire had not spread to this area, strengthen the plea of the appellant as regards the Blow-room. It is also to be noted that the respondent Insurance Company received the separate values of bifurcation as early as on 14.11.1994 without any demur and went ahead with the issuance of policy charging premium at a higher rate for the Blow-room. The belated steps taken by the respondent to charge premium at still higher rate for the entire area was not justified under law. It may be noted that out of Rs. 1,13,13,344/-, an amount of Rs. 43,99,003/- was sought to be levied as premium due for the period 1993-94. This amount was sought to be recovered from the appellant apparently much after the lapse of the validity period of those policies. Therefore, we hold that a sum of Rs. 1,20,77,614/- due to the appellant was illegally withheld by the respondent. | 1[ds]7. It was urged by the respondents counsel that based on the recommendations of the Tariff Advisory Committee, the appellant was asked to pay the additional premium of Rs. 1,13,13,344/- as according to the respondent Insurance Company, the appellant should have observed the TAC approved type of Automatic Diversion System or Co-2 Flooding system in the chute Feeding arrangement between the Blow-room and the Carding Section, but this was not done by the appellant prior to the occurrence of the fire and the Blow-room was not segregated from the rest of the area. Therefore, the additional premium of Rs. 1,13,13,344/- was liable to be paid by theclaim was based on the basis that the appellant had not segregated the Blow-room from the rest of the area and therefore, the entire area attracted premium at the rate of Rs. 11.73 per thousand. It may be noted that initially the entire area was insured @ Rs. 2.5 per thousand, and subsequently the officers and engineers of the respondent Insurance Company visited the premises of the appellant factory and vide communication dated 22.11.1994, the Blow-room was separately insured at the higher rate of Rs. 8.9 per thousand. In the letter dated 22.11.1994 addressed to the appellant, it was stated that : "We are in receipt of your letter dated 14th November, 1994 furnishing separate values in respect of the properties situated in the Blow-room area of your factory referred to herein above. The additional premium in respect of the said property, comes to Rs. 93,316/- as per the premium computation shown hereunder." Therefore, it is clear that the Blow-room was taken as a separate portion segregated from the rest of the factory premises.It is of primary importance to note that the fire had not spread to the Blow-room area. That raises a strong presumption that the Blow-room was segregated even before the accident. The appellant had also produced documents to show that they had installed the fireproof doors to protect the Blow-room. The next important fact was that the respondent demanded a higher rate of premium for the Blow-room in November 1994 and this is prima facie indicative of the fact that the Blow-room was separated from the rest of area. The observations of the representatives of the Loss Prevention Association of India Ltd., who visited the factory on 6.1.1995, cannot be lightly disregarded. Therefore, it is clear that the attempts of the respondent Insurance Company to show that the appellant had not taken effective steps to segregate the Blow-room cannot succeed.12. The respondent Insurance Company claimed the additional premium of Rs. 1,13,13,344/- on the basis of the recommendations of the Tariff Advisory Committee, and it seems that the Comptroller and Auditor General had also recommended that this additional premium should be paid by the appellant. According to the opinion of the Tariff Advisory Committee, the Blow-room was not segregated and the entire main factory, including the building and the Blow-room, was a single communicating structure and, therefore, premium at the higher rate of Rs. 11.73 per thousand should have been charged for the entire area and this higher rate of Rs. 11.73 was reduced to Rs. 8.9 per thousand by the Tariff Advisory Committee with effect from 1.4.1994. It was made clear that the revised lower rate of Rs. 8.9 per thousand would apply to the new business or renewals falling due on or after 1.4.1994. It is also the case of the respondent Insurance Company that the TAC-approved type Automatic Diversion System or Co-2 Flooding System in the Chute Feeding arrangement between the Blow-room and the Carding Section was not installed. It is pertinent to note that the appellant was never informed that these arrangements have to be made. The respondent Insurance Company has also not produced any correspondence to show that when the insurance policies in question were issued, the appellant was informed about these matters or th at the appellant refused to comply with these requirements.It is clear that the respondent Insurance Company recovered the premium at a higher rate for the Blow-room and this can only be on the basis of the acceptance of the fact that the Blow-room was a separate unit. Therefore, the contention of the respondent that the Blow-room and the rest of the area was a single communicating structure cannot be accepted.16. On reappraisal of the evidence, including various correspondences between the insured and the insurer, it is clear that the appellant had segregated the Blow-room from the rest of the area even prior to the occurrence of fire. The fact that the respondent charged a higher rate of premium after having inspected the premises, and the report of the Loss Prevention Association of India Ltd. that the Blow-room was segregated by means of double fire-proof doors and the fire had not spread to this area, strengthen the plea of the appellant as regards the Blow-room. It is also to be noted that the respondent Insurance Company received the separate values of bifurcation as early as on 14.11.1994 without any demur and went ahead with the issuance of policy charging premium at a higher rate for the Blow-room. The belated steps taken by the respondent to charge premium at still higher rate for the entire area was not justified under law. It may be noted that out of Rs. 1,13,13,344/-, an amount of Rs. 43,99,003/- was sought to be levied as premium due for the period 1993-94. This amount was sought to be recovered from the appellant apparently much after the lapse of the validity period of those policies. Therefore, we hold that a sum of Rs. 1,20,77,614/- due to the appellant was illegally withheld by the respondent. | 1 | 3,520 | 1,021 | ### 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:
of the respondent Insurance Company to show that the appellant had not taken effective steps to segregate the Blow-room cannot succeed.12. The respondent Insurance Company claimed the additional premium of Rs. 1,13,13,344/- on the basis of the recommendations of the Tariff Advisory Committee, and it seems that the Comptroller and Auditor General had also recommended that this additional premium should be paid by the appellant. According to the opinion of the Tariff Advisory Committee, the Blow-room was not segregated and the entire main factory, including the building and the Blow-room, was a single communicating structure and, therefore, premium at the higher rate of Rs. 11.73 per thousand should have been charged for the entire area and this higher rate of Rs. 11.73 was reduced to Rs. 8.9 per thousand by the Tariff Advisory Committee with effect from 1.4.1994. It was made clear that the revised lower rate of Rs. 8.9 per thousand would apply to the new business or renewals falling due on or after 1.4.1994. It is also the case of the respondent Insurance Company that the TAC-approved type Automatic Diversion System or Co-2 Flooding System in the Chute Feeding arrangement between the Blow-room and the Carding Section was not installed. It is pertinent to note that the appellant was never informed that these arrangements have to be made. The respondent Insurance Company has also not produced any correspondence to show that when the insurance policies in question were issued, the appellant was informed about these matters or th at the appellant refused to comply with these requirements. 13. Learned Author E.R. Hardy Evamy, in his book relating to Fire and Motor Insurance, 2nd Edition, on page 7, has observed : "The contract of fire insurance, like other contracts of insurance, differs from any ordinary contract in that it requires, throughout its existence, the utmost good faith (uberrima fides) to be observed on the part of both the insured and the insurers.In addition to the ordinary obligation, which exists in every contract that all representations made by the parties during the negotiations leading up to the contract shall be honestly made, it is an implied term of the contract of fire insurance that the person seeking the insurance shall communicate to the insurers all matters within his knowledge which are in fact material to the question of the insurance, and not merely all those which he believes to be material." 14. There is no case that the insured had suppressed any material, whereas the respondent Insurance company had not apprised the insured about the Automatic Diversion System or the Co-2 Flooding System in the Chute Feeding Arrangement. The special precautions to be made on the basis of the report of the TAC are generally matters within the knowledge of the insurers and the contract of insurance being a contract of utmost good faith, ordinarily, these matters should have been brought to the notice of the insured before the policy was issued in his favour. It is also important to note that the respondent Insurance Company did charge a higher rate of premium for the "Blow-room". There is nothing to indicate that it was done on a provisional basis or that the insured suppressed any material facts. In fact, the engineers of the respondent Insurance Company visited the appellants factory prior to the issuance of the policies and charged a higher rate of premium for the Blow-room. When premium is thus demanded and collected at a higher rate, it is an indication regarding the nature of the contract that subsists between the parties, namely, that the insurer was aware of the higher risks involved. In Halsburys Laws of England, Vol. 25, at para 458, the following observations are made : "The rate of premium in fact charged may give rise to important inferences. The materiality of a representation, which has been made, may be inferred from a reduced rate of premium being charged. Similarly, ignorance on the part of the insurers of some matter supposed to be well known may be inferred if they charge no more than the ordinary rate of premium, while an exceptionally high rate of premium may be indicative of their acceptance of the risk as hazardous without requiring disclosure of the precise facts making it so." 15. It is clear that the respondent Insurance Company recovered the premium at a higher rate for the Blow-room and this can only be on the basis of the acceptance of the fact that the Blow-room was a separate unit. Therefore, the contention of the respondent that the Blow-room and the rest of the area was a single communicating structure cannot be accepted.16. On reappraisal of the evidence, including various correspondences between the insured and the insurer, it is clear that the appellant had segregated the Blow-room from the rest of the area even prior to the occurrence of fire. The fact that the respondent charged a higher rate of premium after having inspected the premises, and the report of the Loss Prevention Association of India Ltd. that the Blow-room was segregated by means of double fire-proof doors and the fire had not spread to this area, strengthen the plea of the appellant as regards the Blow-room. It is also to be noted that the respondent Insurance Company received the separate values of bifurcation as early as on 14.11.1994 without any demur and went ahead with the issuance of policy charging premium at a higher rate for the Blow-room. The belated steps taken by the respondent to charge premium at still higher rate for the entire area was not justified under law. It may be noted that out of Rs. 1,13,13,344/-, an amount of Rs. 43,99,003/- was sought to be levied as premium due for the period 1993-94. This amount was sought to be recovered from the appellant apparently much after the lapse of the validity period of those policies. Therefore, we hold that a sum of Rs. 1,20,77,614/- due to the appellant was illegally withheld by the respondent.
### Response:
1
### Explanation:
7. It was urged by the respondents counsel that based on the recommendations of the Tariff Advisory Committee, the appellant was asked to pay the additional premium of Rs. 1,13,13,344/- as according to the respondent Insurance Company, the appellant should have observed the TAC approved type of Automatic Diversion System or Co-2 Flooding system in the chute Feeding arrangement between the Blow-room and the Carding Section, but this was not done by the appellant prior to the occurrence of the fire and the Blow-room was not segregated from the rest of the area. Therefore, the additional premium of Rs. 1,13,13,344/- was liable to be paid by theclaim was based on the basis that the appellant had not segregated the Blow-room from the rest of the area and therefore, the entire area attracted premium at the rate of Rs. 11.73 per thousand. It may be noted that initially the entire area was insured @ Rs. 2.5 per thousand, and subsequently the officers and engineers of the respondent Insurance Company visited the premises of the appellant factory and vide communication dated 22.11.1994, the Blow-room was separately insured at the higher rate of Rs. 8.9 per thousand. In the letter dated 22.11.1994 addressed to the appellant, it was stated that : "We are in receipt of your letter dated 14th November, 1994 furnishing separate values in respect of the properties situated in the Blow-room area of your factory referred to herein above. The additional premium in respect of the said property, comes to Rs. 93,316/- as per the premium computation shown hereunder." Therefore, it is clear that the Blow-room was taken as a separate portion segregated from the rest of the factory premises.It is of primary importance to note that the fire had not spread to the Blow-room area. That raises a strong presumption that the Blow-room was segregated even before the accident. The appellant had also produced documents to show that they had installed the fireproof doors to protect the Blow-room. The next important fact was that the respondent demanded a higher rate of premium for the Blow-room in November 1994 and this is prima facie indicative of the fact that the Blow-room was separated from the rest of area. The observations of the representatives of the Loss Prevention Association of India Ltd., who visited the factory on 6.1.1995, cannot be lightly disregarded. Therefore, it is clear that the attempts of the respondent Insurance Company to show that the appellant had not taken effective steps to segregate the Blow-room cannot succeed.12. The respondent Insurance Company claimed the additional premium of Rs. 1,13,13,344/- on the basis of the recommendations of the Tariff Advisory Committee, and it seems that the Comptroller and Auditor General had also recommended that this additional premium should be paid by the appellant. According to the opinion of the Tariff Advisory Committee, the Blow-room was not segregated and the entire main factory, including the building and the Blow-room, was a single communicating structure and, therefore, premium at the higher rate of Rs. 11.73 per thousand should have been charged for the entire area and this higher rate of Rs. 11.73 was reduced to Rs. 8.9 per thousand by the Tariff Advisory Committee with effect from 1.4.1994. It was made clear that the revised lower rate of Rs. 8.9 per thousand would apply to the new business or renewals falling due on or after 1.4.1994. It is also the case of the respondent Insurance Company that the TAC-approved type Automatic Diversion System or Co-2 Flooding System in the Chute Feeding arrangement between the Blow-room and the Carding Section was not installed. It is pertinent to note that the appellant was never informed that these arrangements have to be made. The respondent Insurance Company has also not produced any correspondence to show that when the insurance policies in question were issued, the appellant was informed about these matters or th at the appellant refused to comply with these requirements.It is clear that the respondent Insurance Company recovered the premium at a higher rate for the Blow-room and this can only be on the basis of the acceptance of the fact that the Blow-room was a separate unit. Therefore, the contention of the respondent that the Blow-room and the rest of the area was a single communicating structure cannot be accepted.16. On reappraisal of the evidence, including various correspondences between the insured and the insurer, it is clear that the appellant had segregated the Blow-room from the rest of the area even prior to the occurrence of fire. The fact that the respondent charged a higher rate of premium after having inspected the premises, and the report of the Loss Prevention Association of India Ltd. that the Blow-room was segregated by means of double fire-proof doors and the fire had not spread to this area, strengthen the plea of the appellant as regards the Blow-room. It is also to be noted that the respondent Insurance Company received the separate values of bifurcation as early as on 14.11.1994 without any demur and went ahead with the issuance of policy charging premium at a higher rate for the Blow-room. The belated steps taken by the respondent to charge premium at still higher rate for the entire area was not justified under law. It may be noted that out of Rs. 1,13,13,344/-, an amount of Rs. 43,99,003/- was sought to be levied as premium due for the period 1993-94. This amount was sought to be recovered from the appellant apparently much after the lapse of the validity period of those policies. Therefore, we hold that a sum of Rs. 1,20,77,614/- due to the appellant was illegally withheld by the respondent.
|
Workmen Of Kottlewell Bullen & Co.Ltd Vs. Kettlewell Bullen & Co.Ltd | in the various settlements, it may be stated that the Bonus Act is confined, in its application, to profit bonus, and other kinds of bonus recognised in industrial law are not covered by the provisions of the Act. In Mumbai Kamgar Sabha, Bombay (supra) it has been held : The conclusion seems to be fairly clear, unless we strain judicial sympathy contrary-wise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus. [p.608] 24. The same view was reiterated in Hukum Chand Jute Mills Ltd. v. Second Industrial Tribunal, West Bengal & others [1979(3) SCR 644], wherein it was held that the customary or contractual bonus were excluded from the provisions of the Act and it was laid down : The Bonus Act (1965) was a complete code but was confined to profit-oriented bonus only. Other kinds of bonus have flourished in Indian Industrial law and have been left uncovered by the Bonus Act. The legislative universe spanned by the said statute cannot therefore affect the rights and obligations belonging to a different world or claims and conditions. [p. 647] 25. In Hukam Chand Jute Mills Ltd. case (supra) while referring to Section 17 of the Bonus Act, this Court has observed : Section 17 in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and `puja bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus. [p. 649] 26. As indicated earlier the High Court has found that payments made under the settlements had no link with the profit. In the circumstances the reference to Section 34(3) of the Bonus Act in the Settlements would not alter the nature of the payment so as to convert it into a bonus paid under the said Act. The reference to Section 34(3) of the Bonus Act must be regarded as having been made by way of abundant caution to exclude the liability of the appellant for bonus under the Act, but that would not alter the nature of the payment. Moreover, Section 17 of the Bonus Act provides as under :- Section 17. Adjustment of customary or interim bonus against bonus payable under the Act - Where in any accounting year - (a) an employer has paid any Puja bonus or other customary bonus to an employee; or (b) an employer has paid a part of the bonus payable under this Act to an employee before the date on which such bonus becomes payable. then, the employer shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to employee under this Act in respect of that accounting year and the employee shall be entitled to receive only the balance. 27. In Mumbai Kamgar Sabha (supra) this Court has observed : For this reason it is provided in Section 17 that where an employer has paid any puja bonus or other customary bonus, he will be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him under the Act. Of course, if the customary bonus is thus recognised statutorily and, if in any instance it happens to be much higher than the bonus payable under the Act, there is no provision totally cutting off the customary bonus. The provision for deduction in Section 17, on the other hand, indicates the independent existence of customary bonus although, to some extent, its quantum is adjustable towards statutory bonus. [p. 607] This can only mean that if the bonus that was being paid by the respondent is found to be customary bonus then the respondent would be entitled to deduct the amount so paid from the amount of bonus payable to the employee by way of bonus under the Act in respect of that accounting year. 28. Shri G.B. Pai, learned senior counsel appearing for the respondent, placed reliance on the decision of this Court in Upendra Chandra Chakraborty and another v. United Bank of India, [1985(3) SCR 1057]. In that case, it was held that the bonus received by the workmen did have the characteristic of customary bonus as known to law. It was found that no bonus was paid for the years 1950 to 1958 and from 1959 onwards the rate had not been uniform and there was no evidence to show that the payment was unrelated to the profits and it was nobodys case that the bonus was not paid in any year of loss and it was also observed that the concept of any customary bonus was unknown to nationalised banks and that in all the nationalised banks which are wholly owned undertakings of the Government of India, the employees must be dealt with on a common denominator in the matter of bonus. Having regard to the aforesaid circumstances, it was held that although the payment was made in the month of September but that payment was not customary bonus. In our opinion the said decision had no application to the facts of the present case. 29. Having considered the award made by the tribunal as well as the judgments of the learned single Judge and the Division Bench of the High Court, we are of the view that in drawing an inference that the bonus that was being paid by the respondent-company to the appellants was customary bonus payable at the rate of 10.5 per cent of the salary or wages could be justifiably drawn by the tribunal having regard to the facts and circumstances of the case, and the High Court was in error in setting aside the award and holding that the bonus that was paid was not in the nature of customary bonus. | 1[ds]21. As regards the first reason given by the High Court that the bonus was not being paid at a uniform rate throughout, it may be stated that though during the years 1959 to 1963 it was paid at the rate of three and a quarter months basic pay (which amount, as pointed out by the learned Judges of the High Court, varied between 10.81 per cent to 12.95 per cent of total salary or wages) and in the year 1964 it was paid at the rate of 4 per cent but in subsequent years from 1965 to 1973 it was paid at a uniform rate of 10.5 per cent of the salary or wages. As noticed earlier, in Vegetable Products Ltd. (supra), it has been held it is not necessary that the uniformity in the rate should be established from the beginning to the end and in a case where for the first few years payment at a certain rate was made but later on for a much larger number of years payment at a somewhat different rate had been made, the tribunal could well come to the conclusion that the payment was at a uniform rate ignoring the first few years. Having regard to the said decision, the payment made during the years 1959 to 1964 could be ignored and, on the basis of the payment made during the years 1965 to 1973 at the uniform rate of 10.5 per cent of the salary or wages it could be said that the payment was made at a uniform rate during the period 1965 to 197322. The question is whether the said period was sufficiently long to draw an inference about the payment being customary in nature. In the Graham Trading Company (supra) the payment had been made continuously from 1940 to 1952 at the rate of one months wages and this Court upheld the claim of the workmen for bonus as a customary and traditional payment. In Vegetable Products Ltd. (supra) bonus was paid from 1954 to 1961 and the said payment was at a uniform rate (30 days wages) from 1956 to 1961. In view of the said payment at a uniform rate from 1956 to 1961 the Industrial Tribunal had held that there was a custom of payment at the rate of 30 days wages as bonus before Puja in the said concern. This Court, however, found that payment was made without dispute and without condition from 1956 to 1958 and that in 1959 the payment was madea and accepted as such and that in 1960 and 1961 the payment was made on condition that it would be adjusted towards the profit bonus of the previous year and was accepted as such. The Court, therefore, set aside the conclusion of the Tribunal that payment of customary or traditional bonus was established. In the instant case there was payment of a uniform rate of 10.5% of salary or wages for an unbroken period of nine years, from 1965 to 1973, which was a sufficiently long period, and the tribunal could have reasonably drawn an inference that the said payment was customary or traditional bonus on the occasion of Puja festival23. With regard to the other reasons given by the High Court, namely, reference to Section 34(3) of the Bonus Act in the various settlements, it may be stated that the Bonus Act is confined, in its application, to profit bonus, and other kinds of bonus recognised in industrial law are not covered by the provisions of the Act24. The same view was reiterated in Hukum Chand Jute Mills Ltd. v. Second Industrial Tribunal, West Bengal & others [1979(3) SCR 644], wherein it was held that the customary or contractual bonus were excluded from the provisions of the Act26. As indicated earlier the High Court has found that payments made under the settlements had no link with the profit. In the circumstances the reference to Section 34(3) of the Bonus Act in the Settlements would not alter the nature of the payment so as to convert it into a bonus paid under the said Act. The reference to Section 34(3) of the Bonus Act must be regarded as having been made by way of abundant caution to exclude the liability of the appellant for bonus under the Act, but that would not alter the nature of the payment28. Shri G.B. Pai, learned senior counsel appearing for the respondent, placed reliance on the decision of this Court in Upendra Chandra Chakraborty and another v. United Bank of India, [1985(3) SCR 1057].In that case, it was held that the bonus received by the workmen did have the characteristic of customary bonus as known to law. It was found that no bonus was paid for the years 1950 to 1958 and from 1959 onwards the rate had not been uniform and there was no evidence to show that the payment was unrelated to the profits and it was nobodys case that the bonus was not paid in any year of loss and it was also observed that the concept of any customary bonus was unknown to nationalised banks and that in all the nationalised banks which are wholly owned undertakings of the Government of India, the employees must be dealt with on a common denominator in the matter of bonus. Having regard to the aforesaid circumstances, it was held that although the payment was made in the month of September but that payment was not customary bonus. In our opinion the said decision had no application to the facts of the present case29. Having considered the award made by the tribunal as well as the judgments of the learned single Judge and the Division Bench of the High Court, we are of the view that in drawing an inference that the bonus that was being paid by they to the appellants was customary bonus payable at the rate of 10.5 per cent of the salary or wages could be justifiably drawn by the tribunal having regard to the facts and circumstances of the case, and the High Court was in error in setting aside the award and holding that the bonus that was paid was not in the nature of customary bonus. | 1 | 4,967 | 1,130 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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in the various settlements, it may be stated that the Bonus Act is confined, in its application, to profit bonus, and other kinds of bonus recognised in industrial law are not covered by the provisions of the Act. In Mumbai Kamgar Sabha, Bombay (supra) it has been held : The conclusion seems to be fairly clear, unless we strain judicial sympathy contrary-wise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus. [p.608] 24. The same view was reiterated in Hukum Chand Jute Mills Ltd. v. Second Industrial Tribunal, West Bengal & others [1979(3) SCR 644], wherein it was held that the customary or contractual bonus were excluded from the provisions of the Act and it was laid down : The Bonus Act (1965) was a complete code but was confined to profit-oriented bonus only. Other kinds of bonus have flourished in Indian Industrial law and have been left uncovered by the Bonus Act. The legislative universe spanned by the said statute cannot therefore affect the rights and obligations belonging to a different world or claims and conditions. [p. 647] 25. In Hukam Chand Jute Mills Ltd. case (supra) while referring to Section 17 of the Bonus Act, this Court has observed : Section 17 in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act and `puja bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus. [p. 649] 26. As indicated earlier the High Court has found that payments made under the settlements had no link with the profit. In the circumstances the reference to Section 34(3) of the Bonus Act in the Settlements would not alter the nature of the payment so as to convert it into a bonus paid under the said Act. The reference to Section 34(3) of the Bonus Act must be regarded as having been made by way of abundant caution to exclude the liability of the appellant for bonus under the Act, but that would not alter the nature of the payment. Moreover, Section 17 of the Bonus Act provides as under :- Section 17. Adjustment of customary or interim bonus against bonus payable under the Act - Where in any accounting year - (a) an employer has paid any Puja bonus or other customary bonus to an employee; or (b) an employer has paid a part of the bonus payable under this Act to an employee before the date on which such bonus becomes payable. then, the employer shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to employee under this Act in respect of that accounting year and the employee shall be entitled to receive only the balance. 27. In Mumbai Kamgar Sabha (supra) this Court has observed : For this reason it is provided in Section 17 that where an employer has paid any puja bonus or other customary bonus, he will be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him under the Act. Of course, if the customary bonus is thus recognised statutorily and, if in any instance it happens to be much higher than the bonus payable under the Act, there is no provision totally cutting off the customary bonus. The provision for deduction in Section 17, on the other hand, indicates the independent existence of customary bonus although, to some extent, its quantum is adjustable towards statutory bonus. [p. 607] This can only mean that if the bonus that was being paid by the respondent is found to be customary bonus then the respondent would be entitled to deduct the amount so paid from the amount of bonus payable to the employee by way of bonus under the Act in respect of that accounting year. 28. Shri G.B. Pai, learned senior counsel appearing for the respondent, placed reliance on the decision of this Court in Upendra Chandra Chakraborty and another v. United Bank of India, [1985(3) SCR 1057]. In that case, it was held that the bonus received by the workmen did have the characteristic of customary bonus as known to law. It was found that no bonus was paid for the years 1950 to 1958 and from 1959 onwards the rate had not been uniform and there was no evidence to show that the payment was unrelated to the profits and it was nobodys case that the bonus was not paid in any year of loss and it was also observed that the concept of any customary bonus was unknown to nationalised banks and that in all the nationalised banks which are wholly owned undertakings of the Government of India, the employees must be dealt with on a common denominator in the matter of bonus. Having regard to the aforesaid circumstances, it was held that although the payment was made in the month of September but that payment was not customary bonus. In our opinion the said decision had no application to the facts of the present case. 29. Having considered the award made by the tribunal as well as the judgments of the learned single Judge and the Division Bench of the High Court, we are of the view that in drawing an inference that the bonus that was being paid by the respondent-company to the appellants was customary bonus payable at the rate of 10.5 per cent of the salary or wages could be justifiably drawn by the tribunal having regard to the facts and circumstances of the case, and the High Court was in error in setting aside the award and holding that the bonus that was paid was not in the nature of customary bonus.
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of three and a quarter months basic pay (which amount, as pointed out by the learned Judges of the High Court, varied between 10.81 per cent to 12.95 per cent of total salary or wages) and in the year 1964 it was paid at the rate of 4 per cent but in subsequent years from 1965 to 1973 it was paid at a uniform rate of 10.5 per cent of the salary or wages. As noticed earlier, in Vegetable Products Ltd. (supra), it has been held it is not necessary that the uniformity in the rate should be established from the beginning to the end and in a case where for the first few years payment at a certain rate was made but later on for a much larger number of years payment at a somewhat different rate had been made, the tribunal could well come to the conclusion that the payment was at a uniform rate ignoring the first few years. Having regard to the said decision, the payment made during the years 1959 to 1964 could be ignored and, on the basis of the payment made during the years 1965 to 1973 at the uniform rate of 10.5 per cent of the salary or wages it could be said that the payment was made at a uniform rate during the period 1965 to 197322. The question is whether the said period was sufficiently long to draw an inference about the payment being customary in nature. In the Graham Trading Company (supra) the payment had been made continuously from 1940 to 1952 at the rate of one months wages and this Court upheld the claim of the workmen for bonus as a customary and traditional payment. In Vegetable Products Ltd. (supra) bonus was paid from 1954 to 1961 and the said payment was at a uniform rate (30 days wages) from 1956 to 1961. In view of the said payment at a uniform rate from 1956 to 1961 the Industrial Tribunal had held that there was a custom of payment at the rate of 30 days wages as bonus before Puja in the said concern. This Court, however, found that payment was made without dispute and without condition from 1956 to 1958 and that in 1959 the payment was madea and accepted as such and that in 1960 and 1961 the payment was made on condition that it would be adjusted towards the profit bonus of the previous year and was accepted as such. The Court, therefore, set aside the conclusion of the Tribunal that payment of customary or traditional bonus was established. In the instant case there was payment of a uniform rate of 10.5% of salary or wages for an unbroken period of nine years, from 1965 to 1973, which was a sufficiently long period, and the tribunal could have reasonably drawn an inference that the said payment was customary or traditional bonus on the occasion of Puja festival23. With regard to the other reasons given by the High Court, namely, reference to Section 34(3) of the Bonus Act in the various settlements, it may be stated that the Bonus Act is confined, in its application, to profit bonus, and other kinds of bonus recognised in industrial law are not covered by the provisions of the Act24. The same view was reiterated in Hukum Chand Jute Mills Ltd. v. Second Industrial Tribunal, West Bengal & others [1979(3) SCR 644], wherein it was held that the customary or contractual bonus were excluded from the provisions of the Act26. As indicated earlier the High Court has found that payments made under the settlements had no link with the profit. In the circumstances the reference to Section 34(3) of the Bonus Act in the Settlements would not alter the nature of the payment so as to convert it into a bonus paid under the said Act. The reference to Section 34(3) of the Bonus Act must be regarded as having been made by way of abundant caution to exclude the liability of the appellant for bonus under the Act, but that would not alter the nature of the payment28. Shri G.B. Pai, learned senior counsel appearing for the respondent, placed reliance on the decision of this Court in Upendra Chandra Chakraborty and another v. United Bank of India, [1985(3) SCR 1057].In that case, it was held that the bonus received by the workmen did have the characteristic of customary bonus as known to law. It was found that no bonus was paid for the years 1950 to 1958 and from 1959 onwards the rate had not been uniform and there was no evidence to show that the payment was unrelated to the profits and it was nobodys case that the bonus was not paid in any year of loss and it was also observed that the concept of any customary bonus was unknown to nationalised banks and that in all the nationalised banks which are wholly owned undertakings of the Government of India, the employees must be dealt with on a common denominator in the matter of bonus. Having regard to the aforesaid circumstances, it was held that although the payment was made in the month of September but that payment was not customary bonus. In our opinion the said decision had no application to the facts of the present case29. Having considered the award made by the tribunal as well as the judgments of the learned single Judge and the Division Bench of the High Court, we are of the view that in drawing an inference that the bonus that was being paid by they to the appellants was customary bonus payable at the rate of 10.5 per cent of the salary or wages could be justifiably drawn by the tribunal having regard to the facts and circumstances of the case, and the High Court was in error in setting aside the award and holding that the bonus that was paid was not in the nature of customary bonus.
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Union Public Service Commission Vs. Gourhari Kamila | body. This Court has explained the role of an examining body in regard to the process of holding examination in the context of examining whether it amounts to "service" to a consumer, in Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 in the following manner: "11. ... The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 13. ... The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of marksheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer." It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer books are evaluated by the examining body. We may next consider whether an examining body would be entitled to claim exemption under Section 8(1)(e) of the RTI Act, even assuming that it is in a fiduciary relationship with the examinee. That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all the relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer books to anyone else. If A entrusts a document or an article to B to be processed, on completion of processing, B is not expected to give the document or article to anyone else but is bound to give the same to A who entrusted the document or article to B for processing. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer book, Section 8(1)(e) would operate as an exemption to prevent access to any third party and will not operate as a bar for the very person who wrote the answer book, seeking inspection or disclosure of it." (emphasis supplied) 13. By applying the ratio of the aforesaid judgment, we hold that the CIC committed a serious illegality by directing the Commission to disclose the information sought by the respondent at point Nos. 4 and 5 and the High Court committed an error by approving his order. 14. We may add that neither the CIC nor the High Court came to the conclusion that disclosure of the information relating to other candidates was necessary in larger public interest. Therefore, the present case is not covered by the exception carved out in Section 8(1)(e) of the Act. 15. Before concluding, we may observe that in the appeal arising out of SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He asked information about other three candidates who had competed with him and the nature of interviews. The appeal filed by him under Section 19(3) was allowed by the CIC without assigning reasons. The writ petition filed by the Commission was dismissed by the learned Single Judge by recording a cryptic order and the letters patent appeal was dismissed by the Division Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent Udaya Kumara was a candidate for the post of Deputy Government counsel in the Department of Legal Affairs, Ministry of Law and Justice. He sought information regarding all other candidates and orders similar to those passed in the other two cases were passed in his case as well. In the appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan (retired Biologist) sough information on various issues including the candidates recommended for appointment on the posts of Senior Instructor (Fishery Biology) and Senior Instructor (Craft and Gear) in the Central Institute of Fisheries, Nautical and Engineering Training. In his case also, similar orders were passed by the CIC, the learned Single Judge and the Division Bench of the High Court. Therefore, what we have observed qua the case of Gourhari Kamila would equally apply to the remaining three cases. | 1[ds]15. Before concluding, we may observe that in the appeal arising out of SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He asked information about other three candidates who had competed with him and the nature of interviews. The appeal filed by him under Section 19(3) was allowed by the CIC without assigning reasons. The writ petition filed by the Commission was dismissed by the learned Single Judge by recording a cryptic order and the letters patent appeal was dismissed by the Division Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent Udaya Kumara was a candidate for the post of Deputy Government counsel in the Department of Legal Affairs, Ministry of Law and Justice. He sought information regarding all other candidates and orders similar to those passed in the other two cases were passed in his case as well. In the appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan (retired Biologist) sough information on various issues including the candidates recommended for appointment on the posts of Senior Instructor (Fishery Biology) and Senior Instructor (Craft and Gear) in the Central Institute of Fisheries, Nautical and Engineering Training. In his case also, similar orders were passed by the CIC, the learned Single Judge and the Division Bench of the High Court. Therefore, what we have observed qua the case of Gourhari Kamila would equally apply to the remaining three cases. | 1 | 3,138 | 286 | ### 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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body. This Court has explained the role of an examining body in regard to the process of holding examination in the context of examining whether it amounts to "service" to a consumer, in Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 in the following manner: "11. ... The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 13. ... The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of marksheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer." It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer books are evaluated by the examining body. We may next consider whether an examining body would be entitled to claim exemption under Section 8(1)(e) of the RTI Act, even assuming that it is in a fiduciary relationship with the examinee. That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all the relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer books to anyone else. If A entrusts a document or an article to B to be processed, on completion of processing, B is not expected to give the document or article to anyone else but is bound to give the same to A who entrusted the document or article to B for processing. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer book, Section 8(1)(e) would operate as an exemption to prevent access to any third party and will not operate as a bar for the very person who wrote the answer book, seeking inspection or disclosure of it." (emphasis supplied) 13. By applying the ratio of the aforesaid judgment, we hold that the CIC committed a serious illegality by directing the Commission to disclose the information sought by the respondent at point Nos. 4 and 5 and the High Court committed an error by approving his order. 14. We may add that neither the CIC nor the High Court came to the conclusion that disclosure of the information relating to other candidates was necessary in larger public interest. Therefore, the present case is not covered by the exception carved out in Section 8(1)(e) of the Act. 15. Before concluding, we may observe that in the appeal arising out of SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He asked information about other three candidates who had competed with him and the nature of interviews. The appeal filed by him under Section 19(3) was allowed by the CIC without assigning reasons. The writ petition filed by the Commission was dismissed by the learned Single Judge by recording a cryptic order and the letters patent appeal was dismissed by the Division Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent Udaya Kumara was a candidate for the post of Deputy Government counsel in the Department of Legal Affairs, Ministry of Law and Justice. He sought information regarding all other candidates and orders similar to those passed in the other two cases were passed in his case as well. In the appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan (retired Biologist) sough information on various issues including the candidates recommended for appointment on the posts of Senior Instructor (Fishery Biology) and Senior Instructor (Craft and Gear) in the Central Institute of Fisheries, Nautical and Engineering Training. In his case also, similar orders were passed by the CIC, the learned Single Judge and the Division Bench of the High Court. Therefore, what we have observed qua the case of Gourhari Kamila would equally apply to the remaining three cases.
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15. Before concluding, we may observe that in the appeal arising out of SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He asked information about other three candidates who had competed with him and the nature of interviews. The appeal filed by him under Section 19(3) was allowed by the CIC without assigning reasons. The writ petition filed by the Commission was dismissed by the learned Single Judge by recording a cryptic order and the letters patent appeal was dismissed by the Division Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent Udaya Kumara was a candidate for the post of Deputy Government counsel in the Department of Legal Affairs, Ministry of Law and Justice. He sought information regarding all other candidates and orders similar to those passed in the other two cases were passed in his case as well. In the appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan (retired Biologist) sough information on various issues including the candidates recommended for appointment on the posts of Senior Instructor (Fishery Biology) and Senior Instructor (Craft and Gear) in the Central Institute of Fisheries, Nautical and Engineering Training. In his case also, similar orders were passed by the CIC, the learned Single Judge and the Division Bench of the High Court. Therefore, what we have observed qua the case of Gourhari Kamila would equally apply to the remaining three cases.
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Syed Shah Ghulam Ghouse Mohiuddin And Ors Vs. Syed Shah Ahmed Moriuddin Kamisul Quadri(Dead) By L. Rs. A | of the properties. Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. 20. Section 18 of the Limitation Act, 1908 provides that when a person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limit for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person affected thereby. In Rahimboy v. Turner, (1893) 20 Ind App 1 (PC) Lord Hobhouse said "When a man has committed a fraud and has got property thereby it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit". Therefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept away from the knowledge of his right to sue or of the title whereon it is founded. In the present case, the right to sue arose when the appellant came to know that the properties were Matrooka and not Dargah and Khankah. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties. It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and a decree thereon without any contest. 21. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Monsharam Chakravarty v. Gonesh Chandra Chakravarty (1913) 17 Cal WN 521. In Mohamedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law. 22. In the present case the suit is for partition of properties which were by consent of parties, treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be reopened by reason of fraud in the earlier proceedings. 23. In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award. The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah. It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was. The other parties did not have any opportunity of knowing the same. Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby misled all the parties. Again when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927, Abdul Hai did not inform the same to any of the parties. The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating those to be Dargah and Khankah. When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition. On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside". That is the statement of law in Halsburys Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790. | 1[ds]The application was for permission to file the suit. There is no order for appointment of a guardian. Further, the Court in appointing the guardian of property of a minor is guided by circumstances for the welfare of the minor. There is no justification to hold that Nooruddin was either the legal guardian or a guardian appointed by the Court11. The decree which was passed on the award appears on an examination of the pleadings and the decree itself that the parties proceeded to have the decree on the basis of the award without any contest as and by way of mutual settlement. It will appear from the decree that it was admitted by the parties that Abdul Hai was in possession of the Dargah and Khankah and that Abdul Hai alone was the Sajjadanasheen of the Khankah. The relinquishment of property by Nooruddin on behalf of the minor is not binding on the minor; There was no legal sanction behind such compromise in the arbitration and in the proceeding resulting in a decree upon the award. There was no legal guardian. The rights and interests of the minor were also not protected particularly when there was conflict of interest between the minor and Abdul Hai. The arbitration agreement, the award and the decree of the Darul Khaza Court on the award are therefore void12. The High Court held that the appellants suit was barred by limitation by reason of knowledge of the appellant that Abdul Hai was in adverse possession since the year 1927 or 1928. In regard to the properties which the appellant claimed in the suit as liable to partition, it is established that all parties proceeded on the basis that Exhibits B-1 to B-10 in the award were not Matrooka properties but Dargah and Khankah properties. If, in fact, they are not Dargah and Khankah properties but Matrooka properties, these should be available to co-owners for partition unless there are legal implements. The estate of a deceased Mohamedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. Where the heirs, continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule I to the Limitation Act, 1908 would be the relevant Article15. On the evidence it would be utterly wrong to speculate that the appellant knew of the contentions advanced in 1927 by Abdul Hai for the release of the properties by stating that they were not Dargah and Khankah properties. There was no suggestion at the time of the examination of the appellant that he was aware in 1927 of the contentions of Abdul Hai. The High Court relied on Exhibit A-38 a letter dated 19 October, 1927 written by the appellant to Abdul Hat to impute knowledge of the attachment and release of the properties. The appellant was never confronted with that letter. It was never suggested to the appellant that the letter could be construed as attributing to the appellant the knowledge of any adverse claim made by Abdul Hai with regard to the properties. In that letter the appellant stated that he was indebted to the elder brother Abdul Hai for his kindness. The appellant also stated that the expenditure incurred in connection with the litigation would be divided into four parts and the amount incurred on behalf of the appellant could be recovered from his account. This letter dated 19 October, 1927 does not at all have the effect of establishing that the appellant had knowledge of any adverse claim of the appellant. The appellant was never shown the letter to explain what litigation he referred to. No inference can be drawn against the appellant without giving him an opportunity to have his say in that matter. It is unfortunate that Abdul Hai died during the pendency of the suit and before the trial. Not only his oral evidence but also the correspondence that Abdul Hai had with the Government of the Nizam in the year 1927 did not find way into the record of the suit. It would be totally misreading the appellants letter of the year 1927 as impressing the appellant with the knowledge of ouster by Abdul Hai of the appellant from the properties forming the subject matter of the suit18. It is established in evidence that the properties which were described as Dargah and Khankah properties before the arbitrators and the decree of the Darul Khaza Court are not Dargah and Khankah properties. Abdul Hai obtained an adjudication and an order of the Government of the Nizam in the year 1927 that only two villages of Debser and Sangvi belonged to the Dargah and the rest were not Dargah and Khankah properties. The appellant knew that there was litigation about the year 1927 about the properties. It is not in evidence as to what that litigation was or which properties were concerned therewith because the letter was not shown to the appellant. Even if it be assumed that all parties treated the properties marked Exhibits B-1 to B-10 as Dargah properties upto the year 1927 and thereafter there was an adjudication on the representation of Abdul Hai that the properties were not Dargah and Khankah the parties would be entitled to the same. The only way in which the parties could lose their rights to the property would be on the finding that there was adverse possession or ouster19. The decree of the Darul Khaza Court will not be an obstacle to the claim of the appellant for partition of the properties, because the properties are admittedly not Dargah and Khankah properties but Matrooka properties. The arbitration proceedings were void by reason of lack of legal guardian of the appellant to enter into a compromise. The decree of the Darul Khaza Court is also invalid and not binding on the appellant for the same reason. If all parties proceeded upon a basis that these were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam the parties are restored to their position, as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court cannot be allowed to stand because the effect of the discovery of the facts is to make it "reasonably probable that the action will succeed". In Birch v. Birch, 1902 Probate Division 130 (131) the Court of Appeal held that a judgment will be set aside on the ground of fraud if evidence of facts discovered since the judgment raise a reasonable probability of the success of the action. The principle can be stated in the words of Westbury,L. C. in Rolfe v. Gregory, (1864) 4 De G.J. and S. 576 "when the remedy is given on the ground of fraud, it is governed by this important principle that the right of the party defrauded is not affected by lapse of time, or generally speaking by anything done or omitted to be done so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed" This decision was referred to by the Calcutta High Court in Biman Chandra Datta v. Promotha Nath Ghose, (1922) ILR 49 Cal 886 where the dictum of Westbury, L. C. was restated by holding that where a plaintiff had been kept from knowledge, by the defendant, of the circumstances constituting the fraud, the plaintiff could rely upon section 18 of the Limitation Act to escape from the bar of limitation. In the present case, it is apparent that until the year 1927 the appellant and the other parties were clearly kept out of the knowledge of the true character of the properties. Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting themTherefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept away from the knowledge of his right to sue or of the title whereon it is founded. In the present case, the right to sue arose when the appellant came to know that the properties were Matrooka and not Dargah and Khankah. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties. It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and a decree thereon without any contest21. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Monsharam Chakravarty v. Gonesh Chandra Chakravarty (1913) 17 Cal WN 521. In Mohamedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law22. In the present case the suit is for partition of properties which were by consent of parties, treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be reopened by reason of fraud in the earlier proceedings23. In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award. The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah. It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was. The other parties did not have any opportunity of knowing the same. Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby misled all the parties. Again when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927, Abdul Hai did not inform the same to any of the parties. The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating those to be Dargah and Khankah. When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition. On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside". That is the statement of law in Halsburys Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790. | 1 | 5,492 | 2,339 | ### 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 the properties. Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. 20. Section 18 of the Limitation Act, 1908 provides that when a person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limit for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person affected thereby. In Rahimboy v. Turner, (1893) 20 Ind App 1 (PC) Lord Hobhouse said "When a man has committed a fraud and has got property thereby it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit". Therefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept away from the knowledge of his right to sue or of the title whereon it is founded. In the present case, the right to sue arose when the appellant came to know that the properties were Matrooka and not Dargah and Khankah. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties. It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and a decree thereon without any contest. 21. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Monsharam Chakravarty v. Gonesh Chandra Chakravarty (1913) 17 Cal WN 521. In Mohamedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law. 22. In the present case the suit is for partition of properties which were by consent of parties, treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be reopened by reason of fraud in the earlier proceedings. 23. In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award. The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah. It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was. The other parties did not have any opportunity of knowing the same. Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby misled all the parties. Again when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927, Abdul Hai did not inform the same to any of the parties. The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating those to be Dargah and Khankah. When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition. On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside". That is the statement of law in Halsburys Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790.
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important principle that the right of the party defrauded is not affected by lapse of time, or generally speaking by anything done or omitted to be done so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed" This decision was referred to by the Calcutta High Court in Biman Chandra Datta v. Promotha Nath Ghose, (1922) ILR 49 Cal 886 where the dictum of Westbury, L. C. was restated by holding that where a plaintiff had been kept from knowledge, by the defendant, of the circumstances constituting the fraud, the plaintiff could rely upon section 18 of the Limitation Act to escape from the bar of limitation. In the present case, it is apparent that until the year 1927 the appellant and the other parties were clearly kept out of the knowledge of the true character of the properties. Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting themTherefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept away from the knowledge of his right to sue or of the title whereon it is founded. In the present case, the right to sue arose when the appellant came to know that the properties were Matrooka and not Dargah and Khankah. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties. It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by misleading the parties and obtaining by consent an award and a decree thereon without any contest21. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Monsharam Chakravarty v. Gonesh Chandra Chakravarty (1913) 17 Cal WN 521. In Mohamedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law22. In the present case the suit is for partition of properties which were by consent of parties, treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be reopened by reason of fraud in the earlier proceedings23. In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B-1 to B-10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award. The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah. It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was. The other parties did not have any opportunity of knowing the same. Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby misled all the parties. Again when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927, Abdul Hai did not inform the same to any of the parties. The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating those to be Dargah and Khankah. When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition. On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside". That is the statement of law in Halsburys Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790.
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International Auto Ltd Vs. CCE, Bihar | In C.A. No. 176/2000:1. The appellant is a job worker manufacturing floor plates assemblies for TELCO. These floor plate assemblies are used by TELCO in the manufacture of excavators. TELCO made available several inputs to the appellant for the purpose of manufacture of the assemblies on which credit had been taken by TELCO. The appellant used TELCOs inputs as well as its own inputs in manufacturing the assemblies. It cleared the assemblies from its factories upon payment of excise duty on the completed floor plate assemblies-by including the value of only the inputs put in by the appellant and adding thereto its service charges.2. By show cause notice dt. 22-2-1994, the appellant was called upon to show cause as to why it should not be charged with short levy of excise duty for the period 28-2-1993 to 31-8-1993 on the ground that the value of the TELCOs inputs in the assemblies should have been included in the assessable value of the assemblies.3. The Departmental Authorities confirmed the demand and also levied penalty on the appellants having negatived its contention that the demand was in any case barred by limitation.4. The Tribunal upheld the finding of the Departmental Authorities on the basis of the decision of this Court in Burn Standard Company Ltd. and another v. Union of India (1991) 3 SCC 467 but reduced the penalty to Rs. 25,000/-.5. Before us learned Counsel appearing on behalf of the appellant has submitted that the entire transaction between the TELCO and the appellant was covered by Rule 57-F(2)(b) of the Central Excise Rules, 1944. Under these Rules the assessee is the manufacturer of the final product, in this case, excavators. The manufacturer of the final product is permitted to remove inputs to a place outside the factory for the purpose of manufacture of intermediate products so that they are returned to the factory for further use in the manufacture of final products. In such a case the credit is taken by the manufacture of final products on the inputs purchased by it which are made available to the intermediate product produces. Modvat credit is taken by the manufacturer of the final product on the inputs supplied by it to the manufacturer of the intermediate products which credit is reversed ultimately when the final product is removed from such manufacturers factory. As far as the appellant, (the intermediate purchaser) is concerned, it is not liable to pay duty on the inputs supplied by TELCO since it had not taken the credit for the Modvat in respect of inputs. It is submitted that it cannot be called upon to pay the duty in respect of those inputs nor can the value of the inputs be added to the excisable value of the assemblies. 6. We are of the view that the submission of the appellant is correct. The Tribunal appears to have been confused between the manufacture of the final product, namely, excavators and the manufacture of the intermediate product, namely, the floor plate assemblies. The scheme of Modvat permits the person who clears the ultimate final product to take the benefit of the Modvat scheme at the time of clearance of such final product. The manufacturer of the final product, in this case TELCO, would therefore, be entitled not only to adjust the credit on the inputs supplied by it to the intermediate purchaser such as the appellant but also to the credit for the duty paid by the intermediate purchaser on its products. The reliance on the decision in Burn Standard Company Ltd. (supra) by the Tribunal was misplaced. That case has no doubt held that the value of the free inputs were to be included in the final product. In that case, the final product was wagons and the question was whether the items which were supplied free by the Railway Board to the assessee could be included in the value of the wagons. This Court came to the conclusion that it could. The first distinguishable feature is that this Court in that case was neither concerned with the Modvat Scheme, nor with the provisions of Rule 57-F(2)(b). Furthermore, the Court was not considering a situation where the question was of the liability of an intermediate product being subjected to excise duty. What was in consideration was the final product, namely, wagons. 7. In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed. | 1[ds]7. In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed.We are of the view that the submission of the appellant is correct. The Tribunal appears to have been confused between the manufacture of the final product, namely, excavators and the manufacture of the intermediate product, namely, the floor plate assemblies. The scheme of Modvat permits the person who clears the ultimate final product to take the benefit of the Modvat scheme at the time of clearance of such final product. The manufacturer of the final product, in this case TELCO, would therefore, be entitled not only to adjust the credit on the inputs supplied by it to the intermediate purchaser such as the appellant but also to the credit for the duty paid by the intermediate purchaser on its products. The reliance on the decision in Burn Standard Company Ltd. (supra) by the Tribunal was misplaced. That case has no doubt held that the value of the free inputs were to be included in the final product. In that case, the final product was wagons and the question was whether the items which were supplied free by the Railway Board to the assessee could be included in the value of the wagons. This Court came to the conclusion that it could. The first distinguishable feature is that this Court in that case was neither concerned with the Modvat Scheme, nor with the provisions of Rule 57-F(2)(b). Furthermore, the Court was not considering a situation where the question was of the liability of an intermediate product being subjected to excise duty. What was in consideration was the final product, namely, wagons.In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed. | 1 | 888 | 486 | ### 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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In C.A. No. 176/2000:1. The appellant is a job worker manufacturing floor plates assemblies for TELCO. These floor plate assemblies are used by TELCO in the manufacture of excavators. TELCO made available several inputs to the appellant for the purpose of manufacture of the assemblies on which credit had been taken by TELCO. The appellant used TELCOs inputs as well as its own inputs in manufacturing the assemblies. It cleared the assemblies from its factories upon payment of excise duty on the completed floor plate assemblies-by including the value of only the inputs put in by the appellant and adding thereto its service charges.2. By show cause notice dt. 22-2-1994, the appellant was called upon to show cause as to why it should not be charged with short levy of excise duty for the period 28-2-1993 to 31-8-1993 on the ground that the value of the TELCOs inputs in the assemblies should have been included in the assessable value of the assemblies.3. The Departmental Authorities confirmed the demand and also levied penalty on the appellants having negatived its contention that the demand was in any case barred by limitation.4. The Tribunal upheld the finding of the Departmental Authorities on the basis of the decision of this Court in Burn Standard Company Ltd. and another v. Union of India (1991) 3 SCC 467 but reduced the penalty to Rs. 25,000/-.5. Before us learned Counsel appearing on behalf of the appellant has submitted that the entire transaction between the TELCO and the appellant was covered by Rule 57-F(2)(b) of the Central Excise Rules, 1944. Under these Rules the assessee is the manufacturer of the final product, in this case, excavators. The manufacturer of the final product is permitted to remove inputs to a place outside the factory for the purpose of manufacture of intermediate products so that they are returned to the factory for further use in the manufacture of final products. In such a case the credit is taken by the manufacture of final products on the inputs purchased by it which are made available to the intermediate product produces. Modvat credit is taken by the manufacturer of the final product on the inputs supplied by it to the manufacturer of the intermediate products which credit is reversed ultimately when the final product is removed from such manufacturers factory. As far as the appellant, (the intermediate purchaser) is concerned, it is not liable to pay duty on the inputs supplied by TELCO since it had not taken the credit for the Modvat in respect of inputs. It is submitted that it cannot be called upon to pay the duty in respect of those inputs nor can the value of the inputs be added to the excisable value of the assemblies. 6. We are of the view that the submission of the appellant is correct. The Tribunal appears to have been confused between the manufacture of the final product, namely, excavators and the manufacture of the intermediate product, namely, the floor plate assemblies. The scheme of Modvat permits the person who clears the ultimate final product to take the benefit of the Modvat scheme at the time of clearance of such final product. The manufacturer of the final product, in this case TELCO, would therefore, be entitled not only to adjust the credit on the inputs supplied by it to the intermediate purchaser such as the appellant but also to the credit for the duty paid by the intermediate purchaser on its products. The reliance on the decision in Burn Standard Company Ltd. (supra) by the Tribunal was misplaced. That case has no doubt held that the value of the free inputs were to be included in the final product. In that case, the final product was wagons and the question was whether the items which were supplied free by the Railway Board to the assessee could be included in the value of the wagons. This Court came to the conclusion that it could. The first distinguishable feature is that this Court in that case was neither concerned with the Modvat Scheme, nor with the provisions of Rule 57-F(2)(b). Furthermore, the Court was not considering a situation where the question was of the liability of an intermediate product being subjected to excise duty. What was in consideration was the final product, namely, wagons. 7. In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed.
### Response:
1
### Explanation:
7. In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed.We are of the view that the submission of the appellant is correct. The Tribunal appears to have been confused between the manufacture of the final product, namely, excavators and the manufacture of the intermediate product, namely, the floor plate assemblies. The scheme of Modvat permits the person who clears the ultimate final product to take the benefit of the Modvat scheme at the time of clearance of such final product. The manufacturer of the final product, in this case TELCO, would therefore, be entitled not only to adjust the credit on the inputs supplied by it to the intermediate purchaser such as the appellant but also to the credit for the duty paid by the intermediate purchaser on its products. The reliance on the decision in Burn Standard Company Ltd. (supra) by the Tribunal was misplaced. That case has no doubt held that the value of the free inputs were to be included in the final product. In that case, the final product was wagons and the question was whether the items which were supplied free by the Railway Board to the assessee could be included in the value of the wagons. This Court came to the conclusion that it could. The first distinguishable feature is that this Court in that case was neither concerned with the Modvat Scheme, nor with the provisions of Rule 57-F(2)(b). Furthermore, the Court was not considering a situation where the question was of the liability of an intermediate product being subjected to excise duty. What was in consideration was the final product, namely, wagons.In this appeal as we have already noted, the final product was the excavator. According to the Modvat scheme, it the Modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product. The Tribunal having misconstrued the provisions of Rule 57-F(2)(b), its decision cannot stand. The decision of the Tribunal is accordingly set aside and the appeal is allowed.
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Niranjan Singh Vs. State Of Madhya-Pradesh | representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu". These principles ae now well established in their application to the detention of a citizen under any law made by a State Legislature or by the Central Parliament. 4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the Constitution. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438 and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal. | 1[ds]4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438 and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal. | 1 | 2,407 | 798 | ### 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:
representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu". These principles ae now well established in their application to the detention of a citizen under any law made by a State Legislature or by the Central Parliament. 4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the Constitution. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438 and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal.
### Response:
1
### Explanation:
4. The next question is, whether it is incumbent upon the State in a habeas corpus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in cl. (5) of Art. 22 of the. It is contended by the learned advocate for the petitioner that in a habeas corpus petition under Art. 32 when, a return is made by the State, it should set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further contends that the consequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a court empowered to determine the legality or otherwise of that detention. The learned Advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy @ Katu v. State of West Bengal, (Writ Petn. No. 52 of 1972 (reported in AIR 1972 SC 1858 to which both of us were parties) contends that Mitter, J. speaking for the Court had observed that where a detenu has not alleged that the representation has not been considered or has been considered but not expeditiously dealt with, it is not incumbent upon the Government to explain the reasons for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was not expeditiously considered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to the Advisory Board forthwith and subsequently consider that representation. In view of the delay in making the representation, the Government could not be blamed in not considering it expeditiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at a decision therein. It was only subsequently that they were in a position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained........See Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438 and Ranjit Dam v. State of West Bengal (W. P. No. 14 of 1972 decided by Shelat and Khanna, JJ. on 24th April, 1972) (reported in AIR 1972 SC 1753). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weighed with the State Government and what materials were taken into consideration in arriving at that conclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter-affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal.
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Jameskutty Jacob Vs. S United India Insurance Co. & Others | B.P. SINGH, J. We have heard the learned counsel for the parties. 2. This appeal was earlier allowed by a judgment and order of this Court dated August 5, 2003, reported in Jameskutty Jacob vs. United India Insurance Co. Ltd. and others, (2003) 7 SCC 131. The appeal was allowed on a finding that the vehicle in question was not shown to be a vehicle in which passengers were carried for hire or reward so as to limit the liability of the insurer to Rs. 50,000/- under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 (for short "the Act"). 3. The said judgment also recorded the fact that nobody had appeared on behalf of the Insurance Company and the Court was informed by the learned counsel for the appellant that there was no evidence on record to show that the vehicle in question was a taxi. Thus, the said judgment of this Court proceeded on the basis that the vehicle in question which met with the accident was not a taxi. Accordingly, the appeal was allowed by judgment and order dated August 5, 2003. 4. The respondent-Insurance Company thereafter filed an Interlocutory Application for setting aside this Courts order dated August 5, 2003 and for hearing the matter afresh, explaining the reasons why its counsel could not appear in the Court on the date the matter was listed for hearing. This Court, by order dated March 15, 2004, allowed the Interlocutory Application filed by the respondent-Insurance Company and restored the appeal to its original number. That is how, this appeal has come up before us for hearing today. 5. The learned counsel for the respondent-Insurance Company has taken us to the insurance policy placed on record which shows that the vehicle in question was a car of Ambassador make of 1981 model with carrying capacity of six in all. The policy was "Act-only" policy. He has drawn our attention to a column in the policy wherein "Limitation as to Use" is prescribed which is as follows: "Use only under a contract carriage permit within the meaning of Motor Vehicles Act, 1939. The policy does not cover use for organised racing or speed testing." 6. In the column meant for calculation of premium, it is stated that the basic premium charged is Rs. 100/- and an additional sum of Rs. 60/- has been charged on account of "Legal Liability to Passengers". This makes the total premium of Rs. 160/-. 7. It would thus appear that the vehicle in question was a "motor cab" used as a contract carriage. The vehicle came within the definition of "motor cab" since its carrying capacity was less than six passengers excluding the driver of the vehicle. 8. On the material shown to us, we are satisfied that the insured vehicle was a "motor cab" which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act, which prescribes a limited liability of Rs. 50,000/- only in respect of persons other than passengers carried for hire or reward. In the instant case, the child injured was not a passenger. | 0[ds]7. It would thus appear that the vehicle in question was a "motor cab" used as a contract carriage. The vehicle came within the definition of "motor cab" since its carrying capacity was less than six passengers excluding the driver of the vehicle8. On the material shown to us, we are satisfied that the insured vehicle was a "motor cab" which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act, which prescribes a limited liability of Rs. 50,000/only in respect of persons other than passengers carried for hire or reward. In the instant case, the child injured was not a passenger. | 0 | 609 | 136 | ### 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:
B.P. SINGH, J. We have heard the learned counsel for the parties. 2. This appeal was earlier allowed by a judgment and order of this Court dated August 5, 2003, reported in Jameskutty Jacob vs. United India Insurance Co. Ltd. and others, (2003) 7 SCC 131. The appeal was allowed on a finding that the vehicle in question was not shown to be a vehicle in which passengers were carried for hire or reward so as to limit the liability of the insurer to Rs. 50,000/- under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 (for short "the Act"). 3. The said judgment also recorded the fact that nobody had appeared on behalf of the Insurance Company and the Court was informed by the learned counsel for the appellant that there was no evidence on record to show that the vehicle in question was a taxi. Thus, the said judgment of this Court proceeded on the basis that the vehicle in question which met with the accident was not a taxi. Accordingly, the appeal was allowed by judgment and order dated August 5, 2003. 4. The respondent-Insurance Company thereafter filed an Interlocutory Application for setting aside this Courts order dated August 5, 2003 and for hearing the matter afresh, explaining the reasons why its counsel could not appear in the Court on the date the matter was listed for hearing. This Court, by order dated March 15, 2004, allowed the Interlocutory Application filed by the respondent-Insurance Company and restored the appeal to its original number. That is how, this appeal has come up before us for hearing today. 5. The learned counsel for the respondent-Insurance Company has taken us to the insurance policy placed on record which shows that the vehicle in question was a car of Ambassador make of 1981 model with carrying capacity of six in all. The policy was "Act-only" policy. He has drawn our attention to a column in the policy wherein "Limitation as to Use" is prescribed which is as follows: "Use only under a contract carriage permit within the meaning of Motor Vehicles Act, 1939. The policy does not cover use for organised racing or speed testing." 6. In the column meant for calculation of premium, it is stated that the basic premium charged is Rs. 100/- and an additional sum of Rs. 60/- has been charged on account of "Legal Liability to Passengers". This makes the total premium of Rs. 160/-. 7. It would thus appear that the vehicle in question was a "motor cab" used as a contract carriage. The vehicle came within the definition of "motor cab" since its carrying capacity was less than six passengers excluding the driver of the vehicle. 8. On the material shown to us, we are satisfied that the insured vehicle was a "motor cab" which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act, which prescribes a limited liability of Rs. 50,000/- only in respect of persons other than passengers carried for hire or reward. In the instant case, the child injured was not a passenger.
### Response:
0
### Explanation:
7. It would thus appear that the vehicle in question was a "motor cab" used as a contract carriage. The vehicle came within the definition of "motor cab" since its carrying capacity was less than six passengers excluding the driver of the vehicle8. On the material shown to us, we are satisfied that the insured vehicle was a "motor cab" which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act, which prescribes a limited liability of Rs. 50,000/only in respect of persons other than passengers carried for hire or reward. In the instant case, the child injured was not a passenger.
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Smith Kline & French [India] Ltd.Etc Vs. Commissioner Of Income Tax | of the Bengal (Rural) Primary Education Act, 1930, on immovable property on which the road and public works cesses were assessed. The rate at which the education cess was to be levied depended upon the character of the property; in respect of mines and quarries, it was leviable at the rate of three and a half pice on each rupee of annual net profits. It is thus abundantly clear that the levy of the aforesaid cesses was upon the immovable properties and not on profits. It is no doubt true that the tax was measured with reference to the net profits of business but it is well settled by a series of decisions of this Court that the measure by which a tax is computed does not determine the character of the tax vide Union of India v. Bombay Tyre International Ltd. AIR 1984 SCC 420), and Goodricke Group Ltd. v. State of W.B. 1955 (1) Supp(SCC) 707). It is, therefore, idle to contend that the said decision helps the assessees case in any manner. The cesses considered in the said decision were not taxes "levied on the profits or gains of any business or profession or assessed at a proportion of or otherwise on the basis of any such profits or gains" within the meaning of Section 40(a)(ii) as explained hereinabove. The learned counsel, however, relied upon the following observations in the said decision : (SCC pp. 320-21, paras 5-6) "The words profits and gains of any business, profession or vocation which are employed in Section 10(4) can, in the context, have reference only to profits or gains as determined under Section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by Section 10. The whole purpose of enacting sub-section (4) of Section 10 appears to be to exclude from the permissible deductions under clauses (ix) and (xv) of sub-section (2) such cess, rate or tax which is levied on the profits or gains of any business, profession or vocation or is assessed at a proportion of or on the basis of such profits or gains. In other words sub-section (4) was meant to exclude a tax or a cess or rate the assessment of which would follow the determination or assessment of profits or gains of any business, profession or vocation in accordance with the provisions of Section 10 of the Act These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under Section 10 of the Act. It is not possible to see, therefore, how Section 10(4) could be applicable at all in the present case." * The learned counsel pointed out that this Court has in the said decision approved the decision of the Privy Council in CIT v. Gurupada Dutta (PC)) and has further observed that Parliament must be deemed to have accepted the view taken by the Privy Council by not changing the language of the relevant provision in the 1961 Act (Section 40(a)(ii)) 7. We are unable to see as to how these observations help the assessees herein. Firstly, it may be mentioned, Section 10(4) of the 1922 Act or Section 40(a)(ii) of the present Act do not contain any words indicating that the profits and gains spoken of by them should be determined in accordance with the provisions of the Income Tax Act. All they say is that it must be a rate or tax levied on the profits and gains of business or profession. The observations relied upon must be read in the said context and not literally or as the provisions in a statute. But so far as the issue herein is concerned, even this literal reading of the said observations does not help the assessee. As we have pointed out hereinabove the surtax is essentially levied on the business profits of the company computed in accordance with the provisions of the Income Tax Act. Merely because certain further deductions (adjustments) are provided by the Surtax Act from the said profits, it cannot be said that the surtax is not levied upon the profits determined or computed in accordance with the provisions of the Income Tax Act. Section 4 of the Surtax Act read with the definition of "chargeable profits" and the First Schedule make the position abundantly clear8. We may mention that all the High Courts in the country except the Gauhati High Court have taken the view which we have taken herein. Only the Gauhati High Court has taken a country view in the decisions in Makum Tea Co. (India) Ltd. v. CIT (Gau)) and Doom Dooma Tea Co. Ltd. v. CIT (Gau)). The decision of the Gauhati High Court in Makum Tea Co. (India) Ltd. (Gau)) is under appeal before us in Civil Appeals Nos. 3976-77 of 1995. Similarly Civil Appeal No. 3246 of 1995 is preferred against the decision of the Gauhati High Court following the decision in Doom Dooma Tea Co. Ltd. (Gau)). (On enquiry, the office has informed that no special leave petition/civil appeal has been filed against the decision in Doom Dooma Tea Co. Ltd. (Gau))). For the aforesaid reasons, we cannot agree with the view taken by the Gauhati High Court in the aforesaid decisions9. We agree with the view taken by the High Courts of Calcutta (Molins of India Ltd. v. CIT (Cal))) and Brooke Bond India Ltd. v. CIT (Cal)), Bombay (Lubrizol India Ltd. v. CIT (Bom)) followed in several other decisions of that Court), Karnataka (CIT v. International Instruments (P) Ltd. (Kant))), Madras (Sundaram Industries Ltd. v. CIT (Mad)), Andhra Pradesh (Vazir Sultan Tobacco Co. Ltd. v. CIT (AP))), Rajasthan (Associated Stone Industries (Kota) Ltd. v. CIT (Raj))), Gujarat (S.L.M. Maneklal Industries Ltd. v. CIT (Guj)) followed in several cases thereafter), Allahabad (Himalaya Drug Co. (P) Ltd. v. CIT (All)) and Punjab and Haryana High Court (Highway Cycle Industries Ltd. v. | 0[ds]It is thus clear beyond any doubt that the surtax is levied on the profits of a company, i.e., on the profits above the prescribed limit. The mere fact that the tax is levied upon "chargeable profits" (which means the total income of the assessee computed under the Income Tax Act, 1961 adjusted in accordance with the provisions of the First Schedule) does not mean that the tax is not levied on the profits of business. In other words, the mere fact that the First Schedule provides for certain further deductions out of the total income computed in accordance with the provisions of the Income Tax Act, 1961, it cannot be said that the amount on which the surtax is levied cases to be the profits of the business. For this reason, it must be held that the surtax levied under the Surtax Act squarely falls within the mischief of sub-clause (ii) of clause (a) of Section 40 and cannot be allowed as a deduction while computing the business income of the assessee under the provisions of the Income Taxreading of the above provision makes it evident that its operation is confined to the computation of the distributable income of a company for the purposes of Chapter XI-D of the Income Tax Act. It cannot be extended to any other chapter or provision in theis not possible to agree with this contention either. The said decision was rendered with reference to sub-section (4) of Section 10 of the Income Tax Act, 1922 which corresponds to sub-clause (ii) of clause (a) of Section 40 of the presentis thus abundantly clear that the levy of the aforesaid cesses was upon the immovable properties and not on profits. It is no doubt true that the tax was measured with reference to the net profits of business but it is well settled by a series of decisions of this Court that the measure by which a tax is computed does not determine the character of the tax vide Union of India v. Bombay Tyre International Ltd. AIR 1984 SCC 420), and Goodricke Group Ltd. v. State of W.B. 1955 (1) Supp(SCC) 707). It is, therefore, idle to contend that the said decision helps the assessees case in any manner. The cesses considered in the said decision were not taxes "levied on the profits or gains of any business or profession or assessed at a proportion of or otherwise on the basis of any such profits or gains" within the meaning of Section 40(a)(ii) as explained hereinabove.We are unable to see as to how these observations help the assessees herein. Firstly, it may be mentioned, Section 10(4) of the 1922 Act or Section 40(a)(ii) of the present Act do not contain any words indicating that the profits and gains spoken of by them should be determined in accordance with the provisions of the Income Tax Act. All they say is that it must be a rate or tax levied on the profits and gains of business or profession. The observations relied upon must be read in the said context and not literally or as the provisions in a statute. But so far as the issue herein is concerned, even this literal reading of the said observations does not help the assessee. As we have pointed out hereinabove the surtax is essentially levied on the business profits of the company computed in accordance with the provisions of the Income Tax Act. Merely because certain further deductions (adjustments) are provided by the Surtax Act from the said profits, it cannot be said that the surtax is not levied upon the profits determined or computed in accordance with the provisions of the Income Tax Act. Section 4 of the Surtax Act read with the definition of "chargeable profits" and the First Schedule make the position abundantly clear8. We may mention that all the High Courts in the country except the Gauhati High Court have taken the view which we have taken herein. Only the Gauhati High Court has taken a country view in the decisions in Makum Tea Co. (India) Ltd. v. CIT (Gau)) and Doom Dooma Tea Co. Ltd. v. CIT (Gau)). The decision of the Gauhati High Court in Makum Tea Co. (India) Ltd. (Gau)) is under appeal before us in Civil Appeals Nos. 3976-77 of 1995. Similarly Civil Appeal No. 3246 of 1995 is preferred against the decision of the Gauhati High Court following the decision in Doom Dooma Tea Co. Ltd. (Gau)). (On enquiry, the office has informed that no special leave petition/civil appeal has been filed against the decision in Doom Dooma Tea Co. Ltd. (Gau))). For the aforesaid reasons, we cannot agree with the view taken by the Gauhati High Court in the aforesaid decisions | 0 | 2,697 | 906 | ### Instruction:
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of the Bengal (Rural) Primary Education Act, 1930, on immovable property on which the road and public works cesses were assessed. The rate at which the education cess was to be levied depended upon the character of the property; in respect of mines and quarries, it was leviable at the rate of three and a half pice on each rupee of annual net profits. It is thus abundantly clear that the levy of the aforesaid cesses was upon the immovable properties and not on profits. It is no doubt true that the tax was measured with reference to the net profits of business but it is well settled by a series of decisions of this Court that the measure by which a tax is computed does not determine the character of the tax vide Union of India v. Bombay Tyre International Ltd. AIR 1984 SCC 420), and Goodricke Group Ltd. v. State of W.B. 1955 (1) Supp(SCC) 707). It is, therefore, idle to contend that the said decision helps the assessees case in any manner. The cesses considered in the said decision were not taxes "levied on the profits or gains of any business or profession or assessed at a proportion of or otherwise on the basis of any such profits or gains" within the meaning of Section 40(a)(ii) as explained hereinabove. The learned counsel, however, relied upon the following observations in the said decision : (SCC pp. 320-21, paras 5-6) "The words profits and gains of any business, profession or vocation which are employed in Section 10(4) can, in the context, have reference only to profits or gains as determined under Section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by Section 10. The whole purpose of enacting sub-section (4) of Section 10 appears to be to exclude from the permissible deductions under clauses (ix) and (xv) of sub-section (2) such cess, rate or tax which is levied on the profits or gains of any business, profession or vocation or is assessed at a proportion of or on the basis of such profits or gains. In other words sub-section (4) was meant to exclude a tax or a cess or rate the assessment of which would follow the determination or assessment of profits or gains of any business, profession or vocation in accordance with the provisions of Section 10 of the Act These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under Section 10 of the Act. It is not possible to see, therefore, how Section 10(4) could be applicable at all in the present case." * The learned counsel pointed out that this Court has in the said decision approved the decision of the Privy Council in CIT v. Gurupada Dutta (PC)) and has further observed that Parliament must be deemed to have accepted the view taken by the Privy Council by not changing the language of the relevant provision in the 1961 Act (Section 40(a)(ii)) 7. We are unable to see as to how these observations help the assessees herein. Firstly, it may be mentioned, Section 10(4) of the 1922 Act or Section 40(a)(ii) of the present Act do not contain any words indicating that the profits and gains spoken of by them should be determined in accordance with the provisions of the Income Tax Act. All they say is that it must be a rate or tax levied on the profits and gains of business or profession. The observations relied upon must be read in the said context and not literally or as the provisions in a statute. But so far as the issue herein is concerned, even this literal reading of the said observations does not help the assessee. As we have pointed out hereinabove the surtax is essentially levied on the business profits of the company computed in accordance with the provisions of the Income Tax Act. Merely because certain further deductions (adjustments) are provided by the Surtax Act from the said profits, it cannot be said that the surtax is not levied upon the profits determined or computed in accordance with the provisions of the Income Tax Act. Section 4 of the Surtax Act read with the definition of "chargeable profits" and the First Schedule make the position abundantly clear8. We may mention that all the High Courts in the country except the Gauhati High Court have taken the view which we have taken herein. Only the Gauhati High Court has taken a country view in the decisions in Makum Tea Co. (India) Ltd. v. CIT (Gau)) and Doom Dooma Tea Co. Ltd. v. CIT (Gau)). The decision of the Gauhati High Court in Makum Tea Co. (India) Ltd. (Gau)) is under appeal before us in Civil Appeals Nos. 3976-77 of 1995. Similarly Civil Appeal No. 3246 of 1995 is preferred against the decision of the Gauhati High Court following the decision in Doom Dooma Tea Co. Ltd. (Gau)). (On enquiry, the office has informed that no special leave petition/civil appeal has been filed against the decision in Doom Dooma Tea Co. Ltd. (Gau))). For the aforesaid reasons, we cannot agree with the view taken by the Gauhati High Court in the aforesaid decisions9. We agree with the view taken by the High Courts of Calcutta (Molins of India Ltd. v. CIT (Cal))) and Brooke Bond India Ltd. v. CIT (Cal)), Bombay (Lubrizol India Ltd. v. CIT (Bom)) followed in several other decisions of that Court), Karnataka (CIT v. International Instruments (P) Ltd. (Kant))), Madras (Sundaram Industries Ltd. v. CIT (Mad)), Andhra Pradesh (Vazir Sultan Tobacco Co. Ltd. v. CIT (AP))), Rajasthan (Associated Stone Industries (Kota) Ltd. v. CIT (Raj))), Gujarat (S.L.M. Maneklal Industries Ltd. v. CIT (Guj)) followed in several cases thereafter), Allahabad (Himalaya Drug Co. (P) Ltd. v. CIT (All)) and Punjab and Haryana High Court (Highway Cycle Industries Ltd. v.
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### Explanation:
It is thus clear beyond any doubt that the surtax is levied on the profits of a company, i.e., on the profits above the prescribed limit. The mere fact that the tax is levied upon "chargeable profits" (which means the total income of the assessee computed under the Income Tax Act, 1961 adjusted in accordance with the provisions of the First Schedule) does not mean that the tax is not levied on the profits of business. In other words, the mere fact that the First Schedule provides for certain further deductions out of the total income computed in accordance with the provisions of the Income Tax Act, 1961, it cannot be said that the amount on which the surtax is levied cases to be the profits of the business. For this reason, it must be held that the surtax levied under the Surtax Act squarely falls within the mischief of sub-clause (ii) of clause (a) of Section 40 and cannot be allowed as a deduction while computing the business income of the assessee under the provisions of the Income Taxreading of the above provision makes it evident that its operation is confined to the computation of the distributable income of a company for the purposes of Chapter XI-D of the Income Tax Act. It cannot be extended to any other chapter or provision in theis not possible to agree with this contention either. The said decision was rendered with reference to sub-section (4) of Section 10 of the Income Tax Act, 1922 which corresponds to sub-clause (ii) of clause (a) of Section 40 of the presentis thus abundantly clear that the levy of the aforesaid cesses was upon the immovable properties and not on profits. It is no doubt true that the tax was measured with reference to the net profits of business but it is well settled by a series of decisions of this Court that the measure by which a tax is computed does not determine the character of the tax vide Union of India v. Bombay Tyre International Ltd. AIR 1984 SCC 420), and Goodricke Group Ltd. v. State of W.B. 1955 (1) Supp(SCC) 707). It is, therefore, idle to contend that the said decision helps the assessees case in any manner. The cesses considered in the said decision were not taxes "levied on the profits or gains of any business or profession or assessed at a proportion of or otherwise on the basis of any such profits or gains" within the meaning of Section 40(a)(ii) as explained hereinabove.We are unable to see as to how these observations help the assessees herein. Firstly, it may be mentioned, Section 10(4) of the 1922 Act or Section 40(a)(ii) of the present Act do not contain any words indicating that the profits and gains spoken of by them should be determined in accordance with the provisions of the Income Tax Act. All they say is that it must be a rate or tax levied on the profits and gains of business or profession. The observations relied upon must be read in the said context and not literally or as the provisions in a statute. But so far as the issue herein is concerned, even this literal reading of the said observations does not help the assessee. As we have pointed out hereinabove the surtax is essentially levied on the business profits of the company computed in accordance with the provisions of the Income Tax Act. Merely because certain further deductions (adjustments) are provided by the Surtax Act from the said profits, it cannot be said that the surtax is not levied upon the profits determined or computed in accordance with the provisions of the Income Tax Act. Section 4 of the Surtax Act read with the definition of "chargeable profits" and the First Schedule make the position abundantly clear8. We may mention that all the High Courts in the country except the Gauhati High Court have taken the view which we have taken herein. Only the Gauhati High Court has taken a country view in the decisions in Makum Tea Co. (India) Ltd. v. CIT (Gau)) and Doom Dooma Tea Co. Ltd. v. CIT (Gau)). The decision of the Gauhati High Court in Makum Tea Co. (India) Ltd. (Gau)) is under appeal before us in Civil Appeals Nos. 3976-77 of 1995. Similarly Civil Appeal No. 3246 of 1995 is preferred against the decision of the Gauhati High Court following the decision in Doom Dooma Tea Co. Ltd. (Gau)). (On enquiry, the office has informed that no special leave petition/civil appeal has been filed against the decision in Doom Dooma Tea Co. Ltd. (Gau))). For the aforesaid reasons, we cannot agree with the view taken by the Gauhati High Court in the aforesaid decisions
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Thimma Alias Thimma Raju Vs. State Of Mysore | complicity in this murder and, therefore, he should be treated no better than an accomplice. In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on the extra-judicial confession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing with them.10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information it was argued also lends support to the appellants guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct of self-preservation in an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt. | 0[ds]In so far as the question of identity is concerned, there can hardly be any doubt that the skeleton was that of the deceased. The Khakhi shirt, Ex. M.O, 1 and the half pant Ex. M. O. 2 have been identified by P. W, 1 as the uniform given to the deceased. The visit book (Ex. M.O. 5) is also proved by P. W, 1 to have been delivered to the deceased. The two postal acknowledgments entrusted to the deceased with the registered articles (Ex. M. O. 6) and the two duplicate keys (Ex. No. 3) of the locks of the post boxes at Kunchenhalli and Somanakoppa have also been identified and proved by P. W, 1. All these articles were recovered from near the dead body. This evidence leaves little doubt that the skeleton was of the deceased. Some doubt was sought to be created on the question whether the bones found at the spot were those of a human body. But on this point the testimony of Dr. Shambulingaswami, Assistant Surgeon, Mc Gann, Hospital, Shimoga (P. W. 26) is clear and it establishes beyond doubt that the bones found were those of a humanThis evidence, in our opinion, convincingly establishes that the deceased was the victim of grievous assaults as a result of which he died and the courts below were quite right in so concluding.It is in evidence that the deceased was last seen in the company of the appellant at about 4.30 p.m when the deceased had gone to deliver the mail bags to the bus. At about 3.30 p.m, according to P. W. 1, the deceased had gone to the post office and taken the postal bags to be delivered to the Mail Bus, M.M.S. Bus Service. He had also told the witness that he would again try to contact Krishna Naika and Halla Naika of Kittadal for delivering the registered articles. Chennabasappa (P. W. 16) has deposed that he saw Govindappa and the appellant delivering the mail bags to the bus after they had taken coffee in the hotel near the bus stop that evening. P. W. 9, the brother of the appellant who was also at the bus stop that evening saw the deceased and the appellant travelling in the same bus. Gangamma (P. W. 8), the wife of the brother of the deceased who lives in a portion of, the same house in which the deceased lived, has stated that she saw the deceased on Friday evening at about 4.30 p.m with the appellant going from their house towards the post office building. The appellant was at that time carrying an axe on his shoulder. The demeanour of this witness was described by the trial court as natural. Sulochana, an eleven year old daughter of the deceased appeared as P. W. 10 and stated that on Friday, the day her father disappeared, at about 4.30 p.m. he left the house to deliver the mail bags. At about 5 p.m. the appellant took an axe from her mother and proceeded towards the post office. At about 8. p.m. the appellant returned home. According to this witness four or five days earlier, the appellant had suggested to the deceased to accompany him to the forest area for bringing teak logs so as to be able to make some money. People of village Haramghatta required teak logs and the deceased, according to the suggestion, could earn at least Rs.15. The deceased first expressed his inability to spare time from his official duties but the suggestion having been repeated the deceased ultimately agreed. This witness, though being only 11 years old was not administered oath, created a favourable impression on the trial court as is obvious from the followingwitness gave her evidence without faltering or visible signs of hesitancy. She speaks clearly, precisely and straight to thetrial court also interrupted the witness in the middle of her testimony in order to satisfy itself, by breaking the continuity of the story, that she was not reproducing a tutored version. On going through her statement we are satisfied that she is a truthful witness and her evidence deserves to be accepted and was rightly accepted by the Courts below. There is, in our opinion, cogent and trustworthy evidence to support the conclusion of the Courts below that the deceased was last seen with the appellant a short time before his disappearance. Having upheld this conclusion, we may appropriately examine the appellants explanation. He has merely denied, by expressing his ignorance, that the deceased had been last seen alive with him. In fact he has simply described as false all the material allegations including that of his acquaintance with Laxmamma and that he used to stay in Kommanal. This bare denial without any explanation is not wholly unimportant.7. This takes us to the motive for the appellant to get rid of the deceased. There can be little doubt on the evidence on the record that the appellant had developed close intimacy with the wife of thethis evidence the motive on the part of the appellant to do away with the deceased isus it was contended that then said to have been made to P. W. 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it. It was emphasised that P. W. 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice.In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on theconfession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing withappears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct ofin an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt. We are satisfied that the evidence on the record establishes the appellants guilt beyond reasonable doubt and the Courts below were quite right in convicting him. On the question of sentence also we do not find any cogent ground for interference. | 0 | 5,218 | 2,021 | ### Instruction:
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complicity in this murder and, therefore, he should be treated no better than an accomplice. In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on the extra-judicial confession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing with them.10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information it was argued also lends support to the appellants guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct of self-preservation in an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt.
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to have been made to P. W. 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it. It was emphasised that P. W. 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice.In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on theconfession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing withappears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct ofin an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt. We are satisfied that the evidence on the record establishes the appellants guilt beyond reasonable doubt and the Courts below were quite right in convicting him. On the question of sentence also we do not find any cogent ground for interference.
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Oil & Natural Gas Corporation Vs. Axis Bank Limited & Others | pass the order on merits.17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30 Crores.18. It appears that at that point of time the ONGC woke up from deep slumber and decided to challenge the order dated 29th October, 2018 as well as the order dated 26th April, 2018. We fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the Respondent ONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the Appellant ONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.19. It is a different matter that we are inclined to stay the order dated 29th October, 2018, since no reasons are given by the learned Company Judge, as to why he has enhanced the amount from Rs.12.66 Crores to 30 Crores.20. In pursuance to the oral submission made by Mr. Jain, learned counsel for the Respondent, Mr. Rajendra Prasad Mada, Managing Partner of the Respondent No.1 Mathews has filed undertaking to this Court. It will be relevant to refer to the said Affidavit-cum-Undertaking.1. I say that by an order dated 26th April, 2018 passed in Company Application No.261 of 2018 in Company Petition No. 576 of 2014, Respondent No.1 was appointed as Project Management Consultant for completion of the balance project under the contract between Respondent No.2 Company and Appellant. 2. By the said order Appellant was directed to pay an amount of Rs.12.66 Crores towards 75% of outstanding dues of the vendors. This Honble Court further directed that the said amount shall be paid to Respondent No.1 and who in turn will be to the vendors mentioned in the list. 3. I, the Managing Partner of Mathew Associates Hook-up and Weld Services hereby undertakes to this Honble Court that:- (a) The entire balance work shall be completed within a period of six months from date of realisation of the aforesaid amount in favour of Respondent No.1. (b) In the event of any delay in completing the work within a period of six months from the date of realisation of the aforesaid amount in favour of Respondent No.1, Respondent No.1 shall deposit the aforesaid amount in this Honble Court. 4. The Appellants will co-ordinate with Respondent No.1 in completion of the balance project under the contract between Respondent No.2 Company and the Appellant. 21. We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018. | 0[ds]17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the RespondentONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the AppellantONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018. | 0 | 3,850 | 726 | ### Instruction:
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pass the order on merits.17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30 Crores.18. It appears that at that point of time the ONGC woke up from deep slumber and decided to challenge the order dated 29th October, 2018 as well as the order dated 26th April, 2018. We fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the Respondent ONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the Appellant ONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.19. It is a different matter that we are inclined to stay the order dated 29th October, 2018, since no reasons are given by the learned Company Judge, as to why he has enhanced the amount from Rs.12.66 Crores to 30 Crores.20. In pursuance to the oral submission made by Mr. Jain, learned counsel for the Respondent, Mr. Rajendra Prasad Mada, Managing Partner of the Respondent No.1 Mathews has filed undertaking to this Court. It will be relevant to refer to the said Affidavit-cum-Undertaking.1. I say that by an order dated 26th April, 2018 passed in Company Application No.261 of 2018 in Company Petition No. 576 of 2014, Respondent No.1 was appointed as Project Management Consultant for completion of the balance project under the contract between Respondent No.2 Company and Appellant. 2. By the said order Appellant was directed to pay an amount of Rs.12.66 Crores towards 75% of outstanding dues of the vendors. This Honble Court further directed that the said amount shall be paid to Respondent No.1 and who in turn will be to the vendors mentioned in the list. 3. I, the Managing Partner of Mathew Associates Hook-up and Weld Services hereby undertakes to this Honble Court that:- (a) The entire balance work shall be completed within a period of six months from date of realisation of the aforesaid amount in favour of Respondent No.1. (b) In the event of any delay in completing the work within a period of six months from the date of realisation of the aforesaid amount in favour of Respondent No.1, Respondent No.1 shall deposit the aforesaid amount in this Honble Court. 4. The Appellants will co-ordinate with Respondent No.1 in completion of the balance project under the contract between Respondent No.2 Company and the Appellant. 21. We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018.
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17. We find that, in so far as Appeal No. 497 of 2018 is concerned which challenges the order dated 26th April, 2018, it deserves to be dismissed on the short ground of the conduct of the Appellant ONGC. The said Company is a State owned company and therefore, a State within the meaning of Article 12 of the Constitution of India. It cannot approbate and reprobate. The perusal of the record would reveal that the learned Company Judge and the Official Liquidator have spent their considerable time so that all the parties agree to a workable arrangement which would sufficiently safeguard the interest of ONGC as well as the vendors. The orders passed by the learned Company Judge would reveal, that the said outside agency was also acceptable to the ONGC. Not only that, the amount as was found to be due and payable was also not disputed by the ONGC. The only dispute that was sought to be raised before the learned Company Judge was that the amount, that would be required to be paid by ONGC would be towards the advance payment and as such ONGC claimed that they would be entitled to charge interest for the amount of advance so paid. The said contention was rejected by the learned Company Judge in his order dated 26th April, 2018. The perusal of the material on record would further reveal that, thereafter there has been a series of communication between the Mathews and the ONGC. The perusal of the record would reveal, that the said Mathews was serious in complying with the directions issued by the learned Company Judge in his order dated 26th April, 2018. However, it appears that since for a period of six months the ONGC had not made any payment as per the directions issued by this Court, he filed the Company Application (L) No. 598 of 2018, wherein the learned Company Judge passed the order on 29th October, 2018 directing to deposit an amount of Rs.30fail to appreciate the submission made by Shri Kamdar that after the passing of the order dated 26th April, 2018, the RespondentONGC found that the amount as directed was not due and payable. The perusal of the order dated 26th April, 2018 would reveal that as a matter of fact ONGC had broadly accepted the arrangement as is directed by the learned Company Judge not only that but in pursuance to the order dated 26th April, 2018, the ONGC has also acted upon the same as is evident from the correspondence exchanged between Mathews and the ONGC. Even prior to order dated 26th April, 2018, the matter was heard on various dates. The liquidator has also conducted various meetings and at no point of time, the ONGC raised an objection to the outstanding dues payable by to the Company in liquidation. Though it is the contention of ONGC that in September, 2018, it found that no dues were payable by it to the Company in liquidation nothing was done by it to point out this to the learned Company Judge. It is for the first time now that the ONGC is trying to wake up from deep slumber. We are therefore of the considered view that it is not open now to the AppellantONGC, to say that what is reflected in the order dated 26th April, 2018 passed by the learned Company Judge is not correct. We are therefore of the considered view, that the Respondent ONGC has challenged the order dated 26th April, 2018, after a long period, only because by subsequent order dated 29th October, 2018, it has been directed to deposit the amount of Rs.30 Crores.We are of the considered view that the said undertaking filed by Shri Mada on behalf of Mathews sufficiently takes care of interest of ONGC as well as other stake holders. In that view of the matter, we do not find any merit in the Appeal challenging order dated 26th April, 2018.
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SUSHIL THOMAS ABRAHAM Vs. M/S SKYLINE BUILD. THRU. ITS PARTNER | has to be taken into consideration for deciding the question as to whether he is an indigent person or not. 23. Order 33 Rule 7(3) empowers the court to either allow or refuse to allow the applicant to sue as an indigent person. Rule 9 empowers the court to withdraw the permission granted under Rule 7(3) at the stance of defendant or State counsel if any of the grounds set out in clauses (a) to (c) is made out. Order 33 Rule 11 as amended by the State of Kerala inter aliaprovides that when the plaintiff is dispaupered, the Court may order the plaintiff to pay the requisite court fees within a time fixed by the Court. 24. Order 44 oftheCodeappliestoappeals. By virtue of Order 44 Rule 1 of the Code, the provisions of Order 33 are made applicable to such appeals. 25. Order 44 Rule 3 (1) of the Code prescribes the procedure in relation to the inquiry which is required to be held to decide the question as to whether the applicant, who has filed the application/appeal under Order 44, can be declared as an indigent person or not. The Rule says that where the applicant is already allowed by the Trial Court to sue as an indigent person then in such circumstances, no further inquiry in respect of the question as to whether he is an indigent person or not is necessary provided such person files an affidavit stating therein that he has not ceased to be an indigent person since the date of decree appealed from. 26. However, if the government lawyer disputes the statement of the applicant made in the affidavit, then the inquiry into the question as to whether he is an indigent person or not shall be held by the Appellate Court or Officer of the Court. 27. Order 44 Rule 3(2) of the Code provides that where the applicant referred to in Order 33 Rule 11 is alleged to have become indigent person since the date of the decree appealed from then the Appellate Court shall hold an inquiry into the question as to whether the applicant has become an indigent person or not since the date of decree appealed from. The Appellate Court in its discretion can also direct the Trial Court which passed the decree appealed from to hold an inquiry on such question. 28. Having examined the scheme of Orders 33 and 44 of the Code and the facts of this case, we find that the case of the appellant (plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of the Code. 29. Though the appellant (plaintiff) was not allowed by the Trial Court/High Court in the earlier round of litigation to institute a suit as an indigent person under Order 33 Rule 1 of the Code, yet in our considered opinion, he was entitled to file an application/appeal under Order 44 Rule 1 of the Code and seek permission from the Appellate Court to allow him to file an appeal as an indigent person. 30.In our view, the dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from. 31. Once the plaintiff files an appeal under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person 32. This is subject to applicant filing an affidavit as required under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1). 33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status. 34. We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated under Order 44 Rule 3(2) of the Code and dismissed the appellants application made under Order 44 Rule 1 of the Code mainly on the ground that since the appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier roundand such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above. | 1[ds]19. On perusal of Order 33 of the Code, we find that the plaintiff is entitled to file a suit as an ?indigent person? under Order 33 of the Code provided he is able to prove that he is not possessed of sufficient means to pay the requisite court fees prescribed by law for the plaint in the suit filed by him.While examining this question, the Court cannot take into. First-the property, which is exempted from the attachment in execution of a decree and the second- which is subject matter of the suit. In other words, the aforementioned two properties cannot be regarded as?possessed? by the person concerned for determining his financial capacity to pay the requisite court fees on his claim in the suit.Similarly, if the person concerned acquires any property afterapplication for grant of permission to sue as indigent person but before the decision is given on his application, such acquired property has to be taken into consideration for deciding the question as to whether he is an indigent person or not.Order 44 Rule 3 (1) of the Code prescribes the procedure in relation to the inquiry which is required to be held to decide the question as to whether the applicant, who has filed the application/appeal under Order 44, can be declared as an indigent person or not. The Rule says that where the applicant is already allowed by the Trial Court to sue as an indigent person then in such circumstances, no further inquiry in respect of the question as to whether he is an indigent person or not is necessary provided such person files an affidavit stating therein that he has not ceased to be an indigent person since the date of decree appealed from.However, if the government lawyer disputes the statement of the applicant made in the affidavit, then the inquiry into the question as to whether he is an indigent person or not shall be held by the Appellate Court or Officer of the Court.Order 44 Rule 3(2) of the Code provides that where the applicant referred to in Order 33 Rule 11 is alleged to have become indigent person since the date of the decree appealed from then the Appellate Court shall hold an inquiry into the question as to whether the applicant has become an indigent person or not since the date of decree appealed from. The Appellate Court in its discretion can also direct the Trial Court which passed the decree appealed from to hold an inquiry on such question.Having examined the scheme of Orders 33 and 44 of the Code and the facts of this case, we find that the case of the appellant (plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of the Code.Though the appellant (plaintiff) was not allowed by the Trial Court/High Court in the earlier round of litigation to institute a suit as an indigent person under Order 33 Rule 1 of the Code, yet in our considered opinion, he was entitled to file an application/appeal under Order 44 Rule 1 of the Code and seek permission from the Appellate Court to allow him to file an appeal as an indigent person.In our view, the dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.Once the plaintiff files an appeal under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent personThis is subject to applicant filing an affidavit as required under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1).So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated under Order 44 Rule 3(2) of the Code and dismissed theapplication made under Order 44 Rule 1 of the Code mainly on the ground that since the appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier roundand such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above. | 1 | 2,357 | 1,095 | ### 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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has to be taken into consideration for deciding the question as to whether he is an indigent person or not. 23. Order 33 Rule 7(3) empowers the court to either allow or refuse to allow the applicant to sue as an indigent person. Rule 9 empowers the court to withdraw the permission granted under Rule 7(3) at the stance of defendant or State counsel if any of the grounds set out in clauses (a) to (c) is made out. Order 33 Rule 11 as amended by the State of Kerala inter aliaprovides that when the plaintiff is dispaupered, the Court may order the plaintiff to pay the requisite court fees within a time fixed by the Court. 24. Order 44 oftheCodeappliestoappeals. By virtue of Order 44 Rule 1 of the Code, the provisions of Order 33 are made applicable to such appeals. 25. Order 44 Rule 3 (1) of the Code prescribes the procedure in relation to the inquiry which is required to be held to decide the question as to whether the applicant, who has filed the application/appeal under Order 44, can be declared as an indigent person or not. The Rule says that where the applicant is already allowed by the Trial Court to sue as an indigent person then in such circumstances, no further inquiry in respect of the question as to whether he is an indigent person or not is necessary provided such person files an affidavit stating therein that he has not ceased to be an indigent person since the date of decree appealed from. 26. However, if the government lawyer disputes the statement of the applicant made in the affidavit, then the inquiry into the question as to whether he is an indigent person or not shall be held by the Appellate Court or Officer of the Court. 27. Order 44 Rule 3(2) of the Code provides that where the applicant referred to in Order 33 Rule 11 is alleged to have become indigent person since the date of the decree appealed from then the Appellate Court shall hold an inquiry into the question as to whether the applicant has become an indigent person or not since the date of decree appealed from. The Appellate Court in its discretion can also direct the Trial Court which passed the decree appealed from to hold an inquiry on such question. 28. Having examined the scheme of Orders 33 and 44 of the Code and the facts of this case, we find that the case of the appellant (plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of the Code. 29. Though the appellant (plaintiff) was not allowed by the Trial Court/High Court in the earlier round of litigation to institute a suit as an indigent person under Order 33 Rule 1 of the Code, yet in our considered opinion, he was entitled to file an application/appeal under Order 44 Rule 1 of the Code and seek permission from the Appellate Court to allow him to file an appeal as an indigent person. 30.In our view, the dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from. 31. Once the plaintiff files an appeal under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person 32. This is subject to applicant filing an affidavit as required under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1). 33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status. 34. We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated under Order 44 Rule 3(2) of the Code and dismissed the appellants application made under Order 44 Rule 1 of the Code mainly on the ground that since the appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier roundand such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above.
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that the plaintiff is entitled to file a suit as an ?indigent person? under Order 33 of the Code provided he is able to prove that he is not possessed of sufficient means to pay the requisite court fees prescribed by law for the plaint in the suit filed by him.While examining this question, the Court cannot take into. First-the property, which is exempted from the attachment in execution of a decree and the second- which is subject matter of the suit. In other words, the aforementioned two properties cannot be regarded as?possessed? by the person concerned for determining his financial capacity to pay the requisite court fees on his claim in the suit.Similarly, if the person concerned acquires any property afterapplication for grant of permission to sue as indigent person but before the decision is given on his application, such acquired property has to be taken into consideration for deciding the question as to whether he is an indigent person or not.Order 44 Rule 3 (1) of the Code prescribes the procedure in relation to the inquiry which is required to be held to decide the question as to whether the applicant, who has filed the application/appeal under Order 44, can be declared as an indigent person or not. The Rule says that where the applicant is already allowed by the Trial Court to sue as an indigent person then in such circumstances, no further inquiry in respect of the question as to whether he is an indigent person or not is necessary provided such person files an affidavit stating therein that he has not ceased to be an indigent person since the date of decree appealed from.However, if the government lawyer disputes the statement of the applicant made in the affidavit, then the inquiry into the question as to whether he is an indigent person or not shall be held by the Appellate Court or Officer of the Court.Order 44 Rule 3(2) of the Code provides that where the applicant referred to in Order 33 Rule 11 is alleged to have become indigent person since the date of the decree appealed from then the Appellate Court shall hold an inquiry into the question as to whether the applicant has become an indigent person or not since the date of decree appealed from. The Appellate Court in its discretion can also direct the Trial Court which passed the decree appealed from to hold an inquiry on such question.Having examined the scheme of Orders 33 and 44 of the Code and the facts of this case, we find that the case of the appellant (plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of the Code.Though the appellant (plaintiff) was not allowed by the Trial Court/High Court in the earlier round of litigation to institute a suit as an indigent person under Order 33 Rule 1 of the Code, yet in our considered opinion, he was entitled to file an application/appeal under Order 44 Rule 1 of the Code and seek permission from the Appellate Court to allow him to file an appeal as an indigent person.In our view, the dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.Once the plaintiff files an appeal under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent personThis is subject to applicant filing an affidavit as required under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1).So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated under Order 44 Rule 3(2) of the Code and dismissed theapplication made under Order 44 Rule 1 of the Code mainly on the ground that since the appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier roundand such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above.
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Arun Vs. Varsha | the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal of petitioner-husband to take back respondent-wife after institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, the petitioner-husband had created obstruction in complying with the decree by the wife or that the petitioner-husband wanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, the petitioner-husband is not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that the petitioner-husband has resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12. Learned counsel for the petitioner-husband has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, we find that being dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No. C-4 of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, the respondent-wife had preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that the respondent-wife was not eager and willing to go and live with the petitioner-husband. This Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of the petitioner-husband willfully due to her suspicion.During pendency of the said maintenance proceeding, the respondent-wife has made allegations against petitioner-husband that he had illicit relations with his sister-in-law and he was giving monetary help to her in view of their relation. According to her, due to the said reason she was abandoned. On the backdrop of these allegations, this Court in the said appeal No. 19 of 2000 has observed that respondent-wife had moved an application with the office of petitioner-husband reiterating the allegations therein of the petitioner-husband having illicit relations with his sister-in-law. This Court has further observed that while showing desire for reconciliation and at the same time complaining to the superior officers of the petitioner-husband making defamatory allegations clearly shows that there were no bonafides in the offer made by respondent-wife to go and live with the petitioner-husband. It has observed that there was no real desire for reconciliation on the part of respondent-wife.13. It would not be out of place to mention here that in the present case the respondent-wife had filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to the petitioner-husband in his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to the petitioner-husband in his cross examination that he had brought a lady from Shinde family as his second wife and that she is widow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations with sister-inlaw and in the present divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand, respondent-wife remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to the respondent-wife informing her to remain present for mediation, she remained absent and considering the reluctance of the respondent-wife mediation in this case was failed.14. Learned counsel for respondent-wife has placed reliance on the judgment of Honble Supreme Court in the case of Chetan Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made following observations:-14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence of respondent-wife for having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. The petitioner-husband has proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do not find that the petitioner-husband wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative. | 1[ds]5. After hearing the parties at length, the following points arise for our consideration and we have recorded our findings thereon for the reasons mentionedhe petitionerhusband isentitled for dissolution of marriage by decree of divorce as provided under section 13(ii) of Hindu Marriage Act 1955In the affirmativeii) What order ... As per finalLearned Judge of the Family Court has failed to consider that inspite of decree of restitution of conjugal rights passed in favour offe had not gone back to theand on the other hand fought the litigation with tooth and nails upto this Court for setting aside the decree of restitution of conjugal rights passed in favour offe did not step up in witness box before the learned Judge of the Family Court, Aurangabad to show that even though she had tried to set aside the decree for restitution of conjugal rights by filing petitions and further proceeding before the appellate forum, she was always willing to join the company of her husband.11. There is no obligation cast by the statute on the party praying for the relief of dissolution of marriage that he/she should call upon other party against whom decree of restitution of conjugal rights has been passed to satisfy the decreebeing so, it cannot be said that the party asking for divorce on such ground has committed wrong if he is not followed the said course. In order to constitute the wrong, within the meaning of Section 23 (1) (a) of the said Act, it has to be something more than mere disinclination of the petitionerhusband to agree to or an offer ofafter filing of divorce petition. The alleged misconduct must be serious enough to justify the denial of the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal ofto take backafter institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, thehad created obstruction in complying with the decree by the wife or that thewanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, theis not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that thehas resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12.Learned counsel ford has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, webeing dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No.of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, thehad preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that thewas not eager and willing to go and live with theThis Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of thewillfully due to her suspicion.It would not be out of place to mention here that in the present case thehad filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to thein his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to thein his cross examination that he had brought a lady from Shinde family as his second wifethat she iswidow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations withand in thepresent divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand,remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to theinforming her to remain present for mediation, she remained absent and considering the reluctance of themediation in this case was failed.14.Learned counsel forhas placed reliance on the judgment of Honble Supreme Court in thean Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made followingMatrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence offor having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. Thehas proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do notd wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative. | 1 | 4,399 | 1,154 | ### 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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the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal of petitioner-husband to take back respondent-wife after institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, the petitioner-husband had created obstruction in complying with the decree by the wife or that the petitioner-husband wanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, the petitioner-husband is not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that the petitioner-husband has resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12. Learned counsel for the petitioner-husband has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, we find that being dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No. C-4 of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, the respondent-wife had preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that the respondent-wife was not eager and willing to go and live with the petitioner-husband. This Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of the petitioner-husband willfully due to her suspicion.During pendency of the said maintenance proceeding, the respondent-wife has made allegations against petitioner-husband that he had illicit relations with his sister-in-law and he was giving monetary help to her in view of their relation. According to her, due to the said reason she was abandoned. On the backdrop of these allegations, this Court in the said appeal No. 19 of 2000 has observed that respondent-wife had moved an application with the office of petitioner-husband reiterating the allegations therein of the petitioner-husband having illicit relations with his sister-in-law. This Court has further observed that while showing desire for reconciliation and at the same time complaining to the superior officers of the petitioner-husband making defamatory allegations clearly shows that there were no bonafides in the offer made by respondent-wife to go and live with the petitioner-husband. It has observed that there was no real desire for reconciliation on the part of respondent-wife.13. It would not be out of place to mention here that in the present case the respondent-wife had filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to the petitioner-husband in his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to the petitioner-husband in his cross examination that he had brought a lady from Shinde family as his second wife and that she is widow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations with sister-inlaw and in the present divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand, respondent-wife remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to the respondent-wife informing her to remain present for mediation, she remained absent and considering the reluctance of the respondent-wife mediation in this case was failed.14. Learned counsel for respondent-wife has placed reliance on the judgment of Honble Supreme Court in the case of Chetan Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made following observations:-14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence of respondent-wife for having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. The petitioner-husband has proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do not find that the petitioner-husband wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative.
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rights passed in favour offe had not gone back to theand on the other hand fought the litigation with tooth and nails upto this Court for setting aside the decree of restitution of conjugal rights passed in favour offe did not step up in witness box before the learned Judge of the Family Court, Aurangabad to show that even though she had tried to set aside the decree for restitution of conjugal rights by filing petitions and further proceeding before the appellate forum, she was always willing to join the company of her husband.11. There is no obligation cast by the statute on the party praying for the relief of dissolution of marriage that he/she should call upon other party against whom decree of restitution of conjugal rights has been passed to satisfy the decreebeing so, it cannot be said that the party asking for divorce on such ground has committed wrong if he is not followed the said course. In order to constitute the wrong, within the meaning of Section 23 (1) (a) of the said Act, it has to be something more than mere disinclination of the petitionerhusband to agree to or an offer ofafter filing of divorce petition. The alleged misconduct must be serious enough to justify the denial of the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal ofto take backafter institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, thehad created obstruction in complying with the decree by the wife or that thewanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, theis not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that thehas resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12.Learned counsel ford has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, webeing dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No.of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, thehad preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that thewas not eager and willing to go and live with theThis Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of thewillfully due to her suspicion.It would not be out of place to mention here that in the present case thehad filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to thein his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to thein his cross examination that he had brought a lady from Shinde family as his second wifethat she iswidow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations withand in thepresent divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand,remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to theinforming her to remain present for mediation, she remained absent and considering the reluctance of themediation in this case was failed.14.Learned counsel forhas placed reliance on the judgment of Honble Supreme Court in thean Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made followingMatrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence offor having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. Thehas proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do notd wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative.
|
M.L. Manchanda & Ors Vs. Union Territory Of Chandigarh & Ors | seriatim with all the three contentions raised by Mr. Ramamurthy. Before embarking on that task, we consider it appropriate to scan the scheme of the Act. Section 3 of the Act clearly states that the Act shall be applicable to houses constructed by the State Government for the occupation of industrial workers under the Industrial Housing Scheme subsidised by the Central Government. The scheme, as evident from the affidavit of the Home Secretary, Chandigarh Government, is meant for the benefit of the low aid industrial workers and economically weaker sections of the community. Section 9(1) of the Act provides that the occupation by any person of a house shall at all times be subject to such conditions relating to its occupation as may be prescribed, or as may be intimated from time to time by the Labour Commissioner. Section 7 of the Act sets out the circumstance s in which a person shall be treated to be in unauthorised occupation of any house. Clause (b) of the section explicity states that a person shall be deemed to be in unauthorised occupation "Where being an allottee he has by reason of cancellation of an allotment under sub-section (2) of section 9 ceased to be entitled to occupy the house". Sub-section (2) of section 9, which is necessary to be referred to at this stage and which because of the non-obstante clause contained in its opening part overrides all other laws for the time being in force, authorises the Labour Commissioner after giving notice to the allottee and considering the explanation tendered by him to cancel the allotment under which a house is held or occupied by him. Section 24 of the Act not only empowers the State Government generally to make rules to effectuate the purposes of the A ct but also specifically confers on it the power to make rules to provide inter alia for the manner of allotment of accommodation and conditions relating to its occupation [see section 24(2)(ii)] as also for the matters which are to be or may be prescribed [see section 24(2)(x)]. A conspectus of the aforesaid provisions of the Act leaves no room for doubt that the allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act. Section 7 of the Act which embodies a deeming provision gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act but also if being an allottee, he ceases to be entitled to occupy the accommodation by reason of cancellation of the allotment under subsection (2) of section 9 of the Act. A combined reading of sections 7 and 9 of the Act goes to show that if at any time a person becomes an unauthorised occupant of the house by reason of his ceasing to be an industrial worker or by otherwise ceasing to fulfill any of the prescribed conditions then in force including the one relating to the limit of his income, he becomes amenable to action under section 9(2) of the Act. The result is that even though the allottee may continue to be an industrial worker, still the allotment under which he holds a house can be cancelled if his occupation becomes un-authorised on any one of the grounds laid down in section 7 of the Act. We are, therefore, satisfied that the impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24 of the Act was validly made and the contention urged by Mr. Ramamurthy that it is ultra vires is misconceived and untenable. We may state here in passing that the aforesaid scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legitimately evolve the method which it did to disentitle industrial workers like the appellants whose monthly salaries appear to range between Rs. 974.71 and Rs. 1861.27 and the aforesaid respondents whose monthly income is also relatively large to retain the houses in question .The contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit. A careful study of the proviso to rule 4(3) of the Rules which appears to have been inserted to allay fears and remove misapprehensions would show that the rule is not intended to operate retrospectively on industrial workers who had been allotted and were in occupation of industrial houses immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. It unequivocally states that allotment of an industrial worker who is in occupation of an industrial house in pursuance thereof immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972 shall not be cancelled without one months notice in writing. The proviso therefore clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/- per mensem but on the expiry of one months notice in writing o f the cancellation. The second contention raised by Mr. Ramamurthi is also, therefore, repelled.5. The third contention advanced by the learned counsel on behalf of the appellants not having been raised before the High Court cannot be permitted to be raised at this stage. The contention can also not be allowed to be raised in view of the Presidential Order dated June 27, 1975 promulgated under clause (1) of Art. 35 9 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclamation of emergency made under clause (I ) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force.6. | 0[ds]A conspectus of the aforesaid provisions of the Act leaves no room for doubt that the allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act. Section 7 of the Act which embodies a deeming provision gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act but also if being an allottee, he ceases to be entitled to occupy the accommodation by reason of cancellation of the allotment under subsection (2) of section 9 of the Act. A combined reading of sections 7 and 9 of the Act goes to show that if at any time a person becomes an unauthorised occupant of the house by reason of his ceasing to be an industrial worker or by otherwise ceasing to fulfill any of the prescribed conditions then in force including the one relating to the limit of his income, he becomes amenable to action under section 9(2) of the Act. The result is that even though the allottee may continue to be an industrial worker, still the allotment under which he holds a house can be cancelled if his occupation becomes un-authorised on any one of the grounds laid down in section 7 of the Act. We are, therefore, satisfied that the impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24 of the Act was validly made and the contention urged by Mr. Ramamurthy that it is ultra vires is misconceived and untenable. We may state here in passing that the aforesaid scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legitimately evolve the method which it did to disentitle industrial workers like the appellants whose monthly salaries appear to range between Rs. 974.71 and Rs. 1861.27 and the aforesaid respondents whose monthly income is also relatively large to retain the houses in question .The contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit. A careful study of the proviso to rule 4(3) of the Rules which appears to have been inserted to allay fears and remove misapprehensions would show that the rule is not intended to operate retrospectively on industrial workers who had been allotted and were in occupation of industrial houses immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. It unequivocally states that allotment of an industrial worker who is in occupation of an industrial house in pursuance thereof immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972 shall not be cancelled without one months notice in writing. The proviso therefore clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/- per mensem but on the expiry of one months notice in writing o f the cancellation. The second contention raised by Mr. Ramamurthi is also, therefore,third contention advanced by the learned counsel on behalf of the appellants not having been raised before the High Court cannot be permitted to be raised at this stage. The contention can also not be allowed to be raised in view of the Presidential Order dated June 27, 1975 promulgated under clause (1) of Art. 35 9 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclamation of emergency made under clause (I ) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force. | 0 | 2,527 | 701 | ### 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:
seriatim with all the three contentions raised by Mr. Ramamurthy. Before embarking on that task, we consider it appropriate to scan the scheme of the Act. Section 3 of the Act clearly states that the Act shall be applicable to houses constructed by the State Government for the occupation of industrial workers under the Industrial Housing Scheme subsidised by the Central Government. The scheme, as evident from the affidavit of the Home Secretary, Chandigarh Government, is meant for the benefit of the low aid industrial workers and economically weaker sections of the community. Section 9(1) of the Act provides that the occupation by any person of a house shall at all times be subject to such conditions relating to its occupation as may be prescribed, or as may be intimated from time to time by the Labour Commissioner. Section 7 of the Act sets out the circumstance s in which a person shall be treated to be in unauthorised occupation of any house. Clause (b) of the section explicity states that a person shall be deemed to be in unauthorised occupation "Where being an allottee he has by reason of cancellation of an allotment under sub-section (2) of section 9 ceased to be entitled to occupy the house". Sub-section (2) of section 9, which is necessary to be referred to at this stage and which because of the non-obstante clause contained in its opening part overrides all other laws for the time being in force, authorises the Labour Commissioner after giving notice to the allottee and considering the explanation tendered by him to cancel the allotment under which a house is held or occupied by him. Section 24 of the Act not only empowers the State Government generally to make rules to effectuate the purposes of the A ct but also specifically confers on it the power to make rules to provide inter alia for the manner of allotment of accommodation and conditions relating to its occupation [see section 24(2)(ii)] as also for the matters which are to be or may be prescribed [see section 24(2)(x)]. A conspectus of the aforesaid provisions of the Act leaves no room for doubt that the allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act. Section 7 of the Act which embodies a deeming provision gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act but also if being an allottee, he ceases to be entitled to occupy the accommodation by reason of cancellation of the allotment under subsection (2) of section 9 of the Act. A combined reading of sections 7 and 9 of the Act goes to show that if at any time a person becomes an unauthorised occupant of the house by reason of his ceasing to be an industrial worker or by otherwise ceasing to fulfill any of the prescribed conditions then in force including the one relating to the limit of his income, he becomes amenable to action under section 9(2) of the Act. The result is that even though the allottee may continue to be an industrial worker, still the allotment under which he holds a house can be cancelled if his occupation becomes un-authorised on any one of the grounds laid down in section 7 of the Act. We are, therefore, satisfied that the impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24 of the Act was validly made and the contention urged by Mr. Ramamurthy that it is ultra vires is misconceived and untenable. We may state here in passing that the aforesaid scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legitimately evolve the method which it did to disentitle industrial workers like the appellants whose monthly salaries appear to range between Rs. 974.71 and Rs. 1861.27 and the aforesaid respondents whose monthly income is also relatively large to retain the houses in question .The contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit. A careful study of the proviso to rule 4(3) of the Rules which appears to have been inserted to allay fears and remove misapprehensions would show that the rule is not intended to operate retrospectively on industrial workers who had been allotted and were in occupation of industrial houses immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. It unequivocally states that allotment of an industrial worker who is in occupation of an industrial house in pursuance thereof immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972 shall not be cancelled without one months notice in writing. The proviso therefore clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/- per mensem but on the expiry of one months notice in writing o f the cancellation. The second contention raised by Mr. Ramamurthi is also, therefore, repelled.5. The third contention advanced by the learned counsel on behalf of the appellants not having been raised before the High Court cannot be permitted to be raised at this stage. The contention can also not be allowed to be raised in view of the Presidential Order dated June 27, 1975 promulgated under clause (1) of Art. 35 9 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclamation of emergency made under clause (I ) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force.6.
### Response:
0
### Explanation:
A conspectus of the aforesaid provisions of the Act leaves no room for doubt that the allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act. Section 7 of the Act which embodies a deeming provision gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act but also if being an allottee, he ceases to be entitled to occupy the accommodation by reason of cancellation of the allotment under subsection (2) of section 9 of the Act. A combined reading of sections 7 and 9 of the Act goes to show that if at any time a person becomes an unauthorised occupant of the house by reason of his ceasing to be an industrial worker or by otherwise ceasing to fulfill any of the prescribed conditions then in force including the one relating to the limit of his income, he becomes amenable to action under section 9(2) of the Act. The result is that even though the allottee may continue to be an industrial worker, still the allotment under which he holds a house can be cancelled if his occupation becomes un-authorised on any one of the grounds laid down in section 7 of the Act. We are, therefore, satisfied that the impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24 of the Act was validly made and the contention urged by Mr. Ramamurthy that it is ultra vires is misconceived and untenable. We may state here in passing that the aforesaid scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legitimately evolve the method which it did to disentitle industrial workers like the appellants whose monthly salaries appear to range between Rs. 974.71 and Rs. 1861.27 and the aforesaid respondents whose monthly income is also relatively large to retain the houses in question .The contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit. A careful study of the proviso to rule 4(3) of the Rules which appears to have been inserted to allay fears and remove misapprehensions would show that the rule is not intended to operate retrospectively on industrial workers who had been allotted and were in occupation of industrial houses immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. It unequivocally states that allotment of an industrial worker who is in occupation of an industrial house in pursuance thereof immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972 shall not be cancelled without one months notice in writing. The proviso therefore clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/- per mensem but on the expiry of one months notice in writing o f the cancellation. The second contention raised by Mr. Ramamurthi is also, therefore,third contention advanced by the learned counsel on behalf of the appellants not having been raised before the High Court cannot be permitted to be raised at this stage. The contention can also not be allowed to be raised in view of the Presidential Order dated June 27, 1975 promulgated under clause (1) of Art. 35 9 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclamation of emergency made under clause (I ) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force.
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K Karunakaran Vs. State Of Kerala | petitions filed against the appellant by the High Court and this Court, the matter pertaining to the purchase of Palmolein deal had not been shelved and was very much alive so far as the State Assembly is concerned. The appellant, when he was the Chief Minister, had declared in the Assembly for probe into the allegations and a Committee on Public Undertakings was seized of the matter. 6. The letter dated 18.6.1996 produced in this Court, for the first time, was not the basis of challenging the First Information Report lodged and the subsequent proceedings conducted against the appellant before the High Court. In the said letter it is stated : "I am to request you to submit enquiry report to Government at the earliest after conducting a preliminary enquiry into the allegations raised in the Legislative Assembly that there is corruption of crores of rupees behind the agreement signed on the 29th November, 1991 for import of 15,000 tones of pamolein to Kerala from Malaysia through the Power and Energy Company, Singapore. Attention is also invited to the report of the Comptroller and Auditor General relating to the issue. It is also brought to your notice that records related to the matter are available in your office." From the contents of the letter it cannot be inferred that any direction had been issued for registration of a criminal case against the appellant and others. What the Commissioner-Secretary had desired was the conducting of preliminary enquiry which could not be prayed to be shut because as apprehended it could lead to the registration of a case. The FIR indicates that while conducting a preliminary enquiry into the allegations of corruption in the matter of Palmolein directly by the State Government, various details were revealed which showed the commission of offences punishable under various provisions of law. 7. After referring to the earlier judgments in the case, the learned Single Judge of the High Court noted the summary of the first information statement of Shri M. Vijaykumar dated 11.4.1994 and compared it with the FIR (Annexure P-8) dated 21st March, 1997 and rightly concluded : "By an assessment of both the first information statement (Annexure-D) and first information report (Annexure A) it is seen that the present first information report is definitely based on further materials and enquiry. The obvious difference between these two sets of first information statement and first information report are : (i) In the FIR filed by Superindent of Police, Vigilance it is clearly found that there was no real requirement for direct import by the State Government; (ii) The import was far in excess of the requirement in the State for the projected period; (iii) The agreement was made without due sanction from the State Government, and Finance Department without specifying the price; (iv) Import conditions stipulated by the Government of India were violated in reference to price limited, terms of payment and fixation of retail price for distribution through the P.D.S. (v) While fixing the price in terms of USD as against the Indian rupee resulted increase in the value of USD was knownanticipated at the time of agreement resulting in huge loss to the Government; (vi) As against the delay from the agreed period upto February, 1992 the supply till March, 1992 the penal clause for the delay was not invoked. These were the relevant and important specific informationallegation as against the earlier First Information Statement of Shri M. Vijayakumar. According to respondents 2 and 3, the present First Information Report is based on a preliminary enquiry conducted in the matter from 9.8.1996 to March, 1997 during which period they examined 63 documents including 18 documents mentioned earlier in the judgments." 8. After going through the pleadings of the parties and keeping in view the rival submissions made before us, we are of the opinion that the registration of the FIR against the appellant and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities. In such matters probes conducted are required to be determined on facts and in accordance with law. The allegations of mala fides were, admittedly, not the basis for challenging the registration of the FIR in the High Court. If during the conduct of a preliminary enquiry the commission of an offence comes to light on the basis of new materials, the respondent-officials were obliged to register a case and present it in a competent Court of jurisdiction for holding of trial and adjudication. The Government order (Annexure R-1) is not shown to have been used against the appellant in any way. The aforesaid order in fact protects the interests of the officials saving them from unnecessary harassment. Mere apprehension of the order being used against some persons is no ground to hold it illegal or unconstitutional particularly when its legality or constitutionality has not been challenged. Prima facie it does not hamper or interfere with the statutory functions of an investigating officer who has, otherwise, statutory rights to hold and complete the investigation in accordance with the provisions of the Code of Criminal Procedure. Our observations with respect to the legality of the Government order are not conclusive regarding its constitutionality but are restricted so far as its applicability to the registration of the FIR against the appellant is concerned. We are, therefore, of the opinion that the aforesaid Government order has not been shown to be in any way illegal or unconstitutional so far as the rights of the appellant are concerned.9. During the course of hearing it was pointed out that the investigation has since been completed and the final report submitted in the Court of competent jurisdiction as permitted by this Court vide its order dated 11.12.1999. In this view of the matter we do not propose to comment on the merits of the case, lest, it may prejudice the parties at the trial. | 0[ds]8. After going through the pleadings of the parties and keeping in view the rival submissions made before us, we are of the opinion that the registration of the FIR against the appellant and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities. In such matters probes conducted are required to be determined on facts and in accordance with law. The allegations of mala fides were, admittedly, not the basis for challenging the registration of the FIR in the High Court. If during the conduct of a preliminary enquiry the commission of an offence comes to light on the basis of new materials, the respondent-officials were obliged to register a case and present it in a competent Court of jurisdiction for holding of trial and adjudication. The Government order (Annexure R-1) is not shown to have been used against the appellant in any way. The aforesaid order in fact protects the interests of the officials saving them from unnecessary harassment. Mere apprehension of the order being used against some persons is no ground to hold it illegal or unconstitutional particularly when its legality or constitutionality has not been challenged. Prima facie it does not hamper or interfere with the statutory functions of an investigating officer who has, otherwise, statutory rights to hold and complete the investigation in accordance with the provisions of the Code of Criminal Procedure. Our observations with respect to the legality of the Government order are not conclusive regarding its constitutionality but are restricted so far as its applicability to the registration of the FIR against the appellant is concerned. We are, therefore, of the opinion that the aforesaid Government order has not been shown to be in any way illegal or unconstitutional so far as the rights of the appellant are concerned.9. During the course of hearing it was pointed out that the investigation has since been completed and the final report submitted in the Court of competent jurisdiction as permitted by this Court vide its order dated 11.12.1999. In this view of the matter we do not propose to comment on the merits of the case, lest, it may prejudice the parties at the trial. | 0 | 2,720 | 415 | ### 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:
petitions filed against the appellant by the High Court and this Court, the matter pertaining to the purchase of Palmolein deal had not been shelved and was very much alive so far as the State Assembly is concerned. The appellant, when he was the Chief Minister, had declared in the Assembly for probe into the allegations and a Committee on Public Undertakings was seized of the matter. 6. The letter dated 18.6.1996 produced in this Court, for the first time, was not the basis of challenging the First Information Report lodged and the subsequent proceedings conducted against the appellant before the High Court. In the said letter it is stated : "I am to request you to submit enquiry report to Government at the earliest after conducting a preliminary enquiry into the allegations raised in the Legislative Assembly that there is corruption of crores of rupees behind the agreement signed on the 29th November, 1991 for import of 15,000 tones of pamolein to Kerala from Malaysia through the Power and Energy Company, Singapore. Attention is also invited to the report of the Comptroller and Auditor General relating to the issue. It is also brought to your notice that records related to the matter are available in your office." From the contents of the letter it cannot be inferred that any direction had been issued for registration of a criminal case against the appellant and others. What the Commissioner-Secretary had desired was the conducting of preliminary enquiry which could not be prayed to be shut because as apprehended it could lead to the registration of a case. The FIR indicates that while conducting a preliminary enquiry into the allegations of corruption in the matter of Palmolein directly by the State Government, various details were revealed which showed the commission of offences punishable under various provisions of law. 7. After referring to the earlier judgments in the case, the learned Single Judge of the High Court noted the summary of the first information statement of Shri M. Vijaykumar dated 11.4.1994 and compared it with the FIR (Annexure P-8) dated 21st March, 1997 and rightly concluded : "By an assessment of both the first information statement (Annexure-D) and first information report (Annexure A) it is seen that the present first information report is definitely based on further materials and enquiry. The obvious difference between these two sets of first information statement and first information report are : (i) In the FIR filed by Superindent of Police, Vigilance it is clearly found that there was no real requirement for direct import by the State Government; (ii) The import was far in excess of the requirement in the State for the projected period; (iii) The agreement was made without due sanction from the State Government, and Finance Department without specifying the price; (iv) Import conditions stipulated by the Government of India were violated in reference to price limited, terms of payment and fixation of retail price for distribution through the P.D.S. (v) While fixing the price in terms of USD as against the Indian rupee resulted increase in the value of USD was knownanticipated at the time of agreement resulting in huge loss to the Government; (vi) As against the delay from the agreed period upto February, 1992 the supply till March, 1992 the penal clause for the delay was not invoked. These were the relevant and important specific informationallegation as against the earlier First Information Statement of Shri M. Vijayakumar. According to respondents 2 and 3, the present First Information Report is based on a preliminary enquiry conducted in the matter from 9.8.1996 to March, 1997 during which period they examined 63 documents including 18 documents mentioned earlier in the judgments." 8. After going through the pleadings of the parties and keeping in view the rival submissions made before us, we are of the opinion that the registration of the FIR against the appellant and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities. In such matters probes conducted are required to be determined on facts and in accordance with law. The allegations of mala fides were, admittedly, not the basis for challenging the registration of the FIR in the High Court. If during the conduct of a preliminary enquiry the commission of an offence comes to light on the basis of new materials, the respondent-officials were obliged to register a case and present it in a competent Court of jurisdiction for holding of trial and adjudication. The Government order (Annexure R-1) is not shown to have been used against the appellant in any way. The aforesaid order in fact protects the interests of the officials saving them from unnecessary harassment. Mere apprehension of the order being used against some persons is no ground to hold it illegal or unconstitutional particularly when its legality or constitutionality has not been challenged. Prima facie it does not hamper or interfere with the statutory functions of an investigating officer who has, otherwise, statutory rights to hold and complete the investigation in accordance with the provisions of the Code of Criminal Procedure. Our observations with respect to the legality of the Government order are not conclusive regarding its constitutionality but are restricted so far as its applicability to the registration of the FIR against the appellant is concerned. We are, therefore, of the opinion that the aforesaid Government order has not been shown to be in any way illegal or unconstitutional so far as the rights of the appellant are concerned.9. During the course of hearing it was pointed out that the investigation has since been completed and the final report submitted in the Court of competent jurisdiction as permitted by this Court vide its order dated 11.12.1999. In this view of the matter we do not propose to comment on the merits of the case, lest, it may prejudice the parties at the trial.
### Response:
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### Explanation:
8. After going through the pleadings of the parties and keeping in view the rival submissions made before us, we are of the opinion that the registration of the FIR against the appellant and others cannot be held to be the result of mala fides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities. In such matters probes conducted are required to be determined on facts and in accordance with law. The allegations of mala fides were, admittedly, not the basis for challenging the registration of the FIR in the High Court. If during the conduct of a preliminary enquiry the commission of an offence comes to light on the basis of new materials, the respondent-officials were obliged to register a case and present it in a competent Court of jurisdiction for holding of trial and adjudication. The Government order (Annexure R-1) is not shown to have been used against the appellant in any way. The aforesaid order in fact protects the interests of the officials saving them from unnecessary harassment. Mere apprehension of the order being used against some persons is no ground to hold it illegal or unconstitutional particularly when its legality or constitutionality has not been challenged. Prima facie it does not hamper or interfere with the statutory functions of an investigating officer who has, otherwise, statutory rights to hold and complete the investigation in accordance with the provisions of the Code of Criminal Procedure. Our observations with respect to the legality of the Government order are not conclusive regarding its constitutionality but are restricted so far as its applicability to the registration of the FIR against the appellant is concerned. We are, therefore, of the opinion that the aforesaid Government order has not been shown to be in any way illegal or unconstitutional so far as the rights of the appellant are concerned.9. During the course of hearing it was pointed out that the investigation has since been completed and the final report submitted in the Court of competent jurisdiction as permitted by this Court vide its order dated 11.12.1999. In this view of the matter we do not propose to comment on the merits of the case, lest, it may prejudice the parties at the trial.
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State Of Punjab And Another Vs. Hari Krishan Sharma | has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself. The result of the instructions issued by appellant No. 1 is to change the statutory provision of S. 5(2) and obliterate the licensing authority from the Statute-book altogether. That, in our opinion, is not justified by the provision as to the control of Government prescribed by S. 5(2). 14. The control of Government contemplated by S. 5(2) may justify the issue of general instructions or directions which may be legitimate for the purpose of the Act and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licences The said control may, therefore, take the form of the issuance of general directions and instructions which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after an order has been passed by the licensing authority. It is true that S. 5(2), in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of S. 5(1), or contrary to the general instructions legitimately issued by it, it may suo motu exercise its power to correct the said order by exercising its power of control. In other words, in the context in which the control of the Government has been provided for by S. 5(2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of S. 5(2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by S. 5(1) and (2) of the Act. To hold that the control of the Government contemplated by S. 5(2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable. 15. Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of a licence. No appeal is provided for against an order granting the licence; but as we have just indicated, in case it appears to the Government that an application has been granted erroneously or unfairly, it can exercise its power of control specified by S. 5(2) and set aside such an erroneous order, and that would make the provision as to appeal or revision self-contained and satisfactory. 16. The scheme of the Act clearly indicates that there are two authorities which are expected to function under the Act the licensing authority, as well as the Government. Section 8 is an illustration in point. It empowers the State Govt. or the licensing authority to suspend, cancel or revoke a licence on the grounds specified by it: and that shows that if a licence is granted by the licensing authority, it has the power to suspend, cancel or revoke such a licence just as Government has a similar power to take action in respect of the licence already granted. We are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 has no authority or power to require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance. Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under S. 5 (2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under S. 5(3) of the Act. The basic fact in the scheme of the Act is that it is the licensing authority which is solely given the power to deal with such applications in the first instance, and this basic position cannot be changed by Government by issuing any executive orders, or by making rules under S. 9 of the Act. 17. It appears that this question has been considered by the Andhra Pradesh, and the Rajasthan High Courts and they have taken the view that the Government can, by virtue of the power of control, deal with the applications for licences themselves in the first instance [vide Karnati Rangaiah v. Sultan Mohiddin and Brothers, Tadipatri, AIR 1957 Andh Pra 513 and M/s. Vishnu Talkies v. State, ILR (1962) 12 Raj 44 respectively]. We are satisfied that this view does not correctly represent the true legal position under the relevant provisions of the Acts prevailing in the two respective States. In Bharat Bhushan v. Cinema and City Magistrate, (S) AIR 1956 All 99 , also, the powers of the State Government under S. 5(3) of the Cinematograph Act, 1918 have been similarly construed and that again, in our opinion, cannot be said to be right. In dealing with the question about the scope and effect of the power of control conferred on the State Government the Allahabad High Court has taken the view that the power of control which has been conferred on the State Government by S. 5(2) is wide enough to enable the State Government to revise an order passed by a licensing authority granting a licence. This observation, in our opinion, correctly represents the true scope and effect of the power of control conferred on the State Government. | 0[ds]It is true that S. 5(2) provides that the licensing authority may grant licences subject to the provisions of S. 5(1) and subject to the control of the Government, and it may be conceded that the control of the Government subject to which the licensing authority has to function while exercising its power under S. 5(1) and (2), is very wide; but however wide this control may be, it cannot justify appellant No. 1 to completely oust the licensing authority and itself usurp his functions. The Legislature contemplates a licensing authority as distinct from the Government. It no doubt recognises that the licensing authority has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself. The result of the instructions issued by appellant No. 1 is to change the statutory provision of S. 5(2) and obliterate the licensing authority from the Statute-book altogether. That, in our opinion, is not justified by the provision as to the control of Government prescribed by S. 5(2)in the context in which the control of the Government has been provided for by S. 5(2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of S. 5(2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by S. 5(1) and (2) of the Act. To hold that the control of the Government contemplated by S. 5(2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable15. Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of a licence. No appeal is provided for against an order granting the licence; but as we have just indicated, in case it appears to the Government that an application has been granted erroneously or unfairly, it can exercise its power of control specified by S. 5(2) and set aside such an erroneous order, and that would make the provision as to appeal or revision self-contained and satisfactoryWe are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 has no authority or power to require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance. Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under S. 5 (2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under S. 5(3) of the ActIn dealing with the question about the scope and effect of the power of control conferred on the State Government the Allahabad High Court has taken the view that the power of control which has been conferred on the State Government by S. 5(2) is wide enough to enable the State Government to revise an order passed by a licensing authority granting a licence. This observation, in our opinion, correctly represents the true scope and effect of the power of control conferred on the State Government. | 0 | 3,933 | 714 | ### 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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has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself. The result of the instructions issued by appellant No. 1 is to change the statutory provision of S. 5(2) and obliterate the licensing authority from the Statute-book altogether. That, in our opinion, is not justified by the provision as to the control of Government prescribed by S. 5(2). 14. The control of Government contemplated by S. 5(2) may justify the issue of general instructions or directions which may be legitimate for the purpose of the Act and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licences The said control may, therefore, take the form of the issuance of general directions and instructions which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after an order has been passed by the licensing authority. It is true that S. 5(2), in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of S. 5(1), or contrary to the general instructions legitimately issued by it, it may suo motu exercise its power to correct the said order by exercising its power of control. In other words, in the context in which the control of the Government has been provided for by S. 5(2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of S. 5(2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by S. 5(1) and (2) of the Act. To hold that the control of the Government contemplated by S. 5(2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable. 15. Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of a licence. No appeal is provided for against an order granting the licence; but as we have just indicated, in case it appears to the Government that an application has been granted erroneously or unfairly, it can exercise its power of control specified by S. 5(2) and set aside such an erroneous order, and that would make the provision as to appeal or revision self-contained and satisfactory. 16. The scheme of the Act clearly indicates that there are two authorities which are expected to function under the Act the licensing authority, as well as the Government. Section 8 is an illustration in point. It empowers the State Govt. or the licensing authority to suspend, cancel or revoke a licence on the grounds specified by it: and that shows that if a licence is granted by the licensing authority, it has the power to suspend, cancel or revoke such a licence just as Government has a similar power to take action in respect of the licence already granted. We are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 has no authority or power to require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance. Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under S. 5 (2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under S. 5(3) of the Act. The basic fact in the scheme of the Act is that it is the licensing authority which is solely given the power to deal with such applications in the first instance, and this basic position cannot be changed by Government by issuing any executive orders, or by making rules under S. 9 of the Act. 17. It appears that this question has been considered by the Andhra Pradesh, and the Rajasthan High Courts and they have taken the view that the Government can, by virtue of the power of control, deal with the applications for licences themselves in the first instance [vide Karnati Rangaiah v. Sultan Mohiddin and Brothers, Tadipatri, AIR 1957 Andh Pra 513 and M/s. Vishnu Talkies v. State, ILR (1962) 12 Raj 44 respectively]. We are satisfied that this view does not correctly represent the true legal position under the relevant provisions of the Acts prevailing in the two respective States. In Bharat Bhushan v. Cinema and City Magistrate, (S) AIR 1956 All 99 , also, the powers of the State Government under S. 5(3) of the Cinematograph Act, 1918 have been similarly construed and that again, in our opinion, cannot be said to be right. In dealing with the question about the scope and effect of the power of control conferred on the State Government the Allahabad High Court has taken the view that the power of control which has been conferred on the State Government by S. 5(2) is wide enough to enable the State Government to revise an order passed by a licensing authority granting a licence. This observation, in our opinion, correctly represents the true scope and effect of the power of control conferred on the State Government.
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It is true that S. 5(2) provides that the licensing authority may grant licences subject to the provisions of S. 5(1) and subject to the control of the Government, and it may be conceded that the control of the Government subject to which the licensing authority has to function while exercising its power under S. 5(1) and (2), is very wide; but however wide this control may be, it cannot justify appellant No. 1 to completely oust the licensing authority and itself usurp his functions. The Legislature contemplates a licensing authority as distinct from the Government. It no doubt recognises that the licensing authority has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself. The result of the instructions issued by appellant No. 1 is to change the statutory provision of S. 5(2) and obliterate the licensing authority from the Statute-book altogether. That, in our opinion, is not justified by the provision as to the control of Government prescribed by S. 5(2)in the context in which the control of the Government has been provided for by S. 5(2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of S. 5(2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by S. 5(1) and (2) of the Act. To hold that the control of the Government contemplated by S. 5(2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable15. Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of a licence. No appeal is provided for against an order granting the licence; but as we have just indicated, in case it appears to the Government that an application has been granted erroneously or unfairly, it can exercise its power of control specified by S. 5(2) and set aside such an erroneous order, and that would make the provision as to appeal or revision self-contained and satisfactoryWe are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 has no authority or power to require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance. Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under S. 5 (2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under S. 5(3) of the ActIn dealing with the question about the scope and effect of the power of control conferred on the State Government the Allahabad High Court has taken the view that the power of control which has been conferred on the State Government by S. 5(2) is wide enough to enable the State Government to revise an order passed by a licensing authority granting a licence. This observation, in our opinion, correctly represents the true scope and effect of the power of control conferred on the State Government.
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Venkata Reddi And Others Vs. Pothi Reddi | in these terms :"Upon hearing the solicitors for the petitioner I do order that the order herein dated July 11 1928 be varied and that (the debtor) the co-respondent do within seven days from the service of this order pay to Messrs. H. L. Lumley and Co., of 36 Piccadilly W. 1., the solicitors of the petitioner, the sum of L67 1s. 9d. being the amount of the petitioners taxed costs as taxed and certified by one of the registrars of this Division, the said solicitors undertaking to lodge in Court any sums recovered under this order."Pursuant to this order the solicitors gave an undertaking required by the court to the registrar on October 26. On November 5, the decree nisi was made absolute. On January 2, 1929, a bankruptcy notice was issued by the solicitors against the debtor for payment to them of the amount of L67 1s. 9d. The correspondent did not comply with the bankruptcy notice and accordingly on January 27, the solicitors presented a bankruptcy petition against him. Overruling the objection by the correspondent, that is, the debtor that the bankruptcy notice was bad on, amongst other things, the ground that the second order made by the President of the Divorce Division was not a final order within sub-s. 1(g) of S. 1 of the Bankruptcy Act, 1914, the registrar made a receiving order. In appeal it was contended that the receiving order was wrong because the solicitors were not the creditors of the debtor and also because the order for payment of the costs to them was not a final order. While upholding the latter contention Lord Hanworth, M. R., said what has been quoted above and relied upon by the High court. Upon the particular facts of the case the order was clearly not a final order and in making the observations quoted above the Master of Rolls did not formulate a test for determining what could be regarded as a final order in every kind of case. The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents.9. Apart from this, the short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment debtor against whom the decree is passed does not pay the amount voluntarily execution proceedings will have to be taken for recovering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High courts view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them. We may, however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao v. Mutvala Ammanna, C. A. No. 634 of 1957 D/- 29-3-1961 (SC), in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the fathers insolvency the Official Receiver was incompetent to sell the sons interest in the Joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate Judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High court. Before the decision of the suits after remand, the Amending Act XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High court on the point was a final order within the meaning of the proviso. The District Judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The High Court reversed the decision of the District .Judge but this court held that the orders of remand made by the Subordinate Judge and upheld by the High Court were interlocutory orders as also were the orders of the High Court in the appeals preferred before it and as such could be challenged in the appeal preferred before this Court against the decision of the High Court in the appeal against the final decree in the suit. In the case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf. (Sic.) | 1[ds]6. The new provision makes it clear that the law is and has always been that upon the fathers insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second apt peal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word decision even in its popular sense means a concluded opinion (see Shrouds Judicial Dictionary 3rd Ed. Vol. I, p. 743.) Where therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observedmere declaration of the rights of the plaintiff by the preliminary decree, would in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not becomeis not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Ss. 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stagesand though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing thatthe case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf. | 1 | 3,278 | 1,089 | ### Instruction:
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in these terms :"Upon hearing the solicitors for the petitioner I do order that the order herein dated July 11 1928 be varied and that (the debtor) the co-respondent do within seven days from the service of this order pay to Messrs. H. L. Lumley and Co., of 36 Piccadilly W. 1., the solicitors of the petitioner, the sum of L67 1s. 9d. being the amount of the petitioners taxed costs as taxed and certified by one of the registrars of this Division, the said solicitors undertaking to lodge in Court any sums recovered under this order."Pursuant to this order the solicitors gave an undertaking required by the court to the registrar on October 26. On November 5, the decree nisi was made absolute. On January 2, 1929, a bankruptcy notice was issued by the solicitors against the debtor for payment to them of the amount of L67 1s. 9d. The correspondent did not comply with the bankruptcy notice and accordingly on January 27, the solicitors presented a bankruptcy petition against him. Overruling the objection by the correspondent, that is, the debtor that the bankruptcy notice was bad on, amongst other things, the ground that the second order made by the President of the Divorce Division was not a final order within sub-s. 1(g) of S. 1 of the Bankruptcy Act, 1914, the registrar made a receiving order. In appeal it was contended that the receiving order was wrong because the solicitors were not the creditors of the debtor and also because the order for payment of the costs to them was not a final order. While upholding the latter contention Lord Hanworth, M. R., said what has been quoted above and relied upon by the High court. Upon the particular facts of the case the order was clearly not a final order and in making the observations quoted above the Master of Rolls did not formulate a test for determining what could be regarded as a final order in every kind of case. The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents.9. Apart from this, the short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment debtor against whom the decree is passed does not pay the amount voluntarily execution proceedings will have to be taken for recovering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High courts view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them. We may, however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao v. Mutvala Ammanna, C. A. No. 634 of 1957 D/- 29-3-1961 (SC), in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the fathers insolvency the Official Receiver was incompetent to sell the sons interest in the Joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate Judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High court. Before the decision of the suits after remand, the Amending Act XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High court on the point was a final order within the meaning of the proviso. The District Judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The High Court reversed the decision of the District .Judge but this court held that the orders of remand made by the Subordinate Judge and upheld by the High Court were interlocutory orders as also were the orders of the High Court in the appeals preferred before it and as such could be challenged in the appeal preferred before this Court against the decision of the High Court in the appeal against the final decree in the suit. In the case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf. (Sic.)
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### Explanation:
insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second apt peal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word decision even in its popular sense means a concluded opinion (see Shrouds Judicial Dictionary 3rd Ed. Vol. I, p. 743.) Where therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observedmere declaration of the rights of the plaintiff by the preliminary decree, would in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not becomeis not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Ss. 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "modified and amended". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stagesand though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing thatthe case before us the preliminary decree was never challenged at all by preferring any appeal and, therefore, the matters concluded by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of S. 105, C. P. C. It will thus be seen that the decision relied upon has no application to the facts of this case.10. Our conclusion therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser as the official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to S. 28-A.Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application effect in that behalf.
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Commissioner of Central Excise Vs. BHEL | 1. We have heard the learned Counsels for the parties and perused the relevant material. The issue arising in this appeal is whether the essential components/parts of a boiler cleared by the Assessee would attract duty under sub-heading 8402.10 of the first Schedule of Central Excise Tariff Act, 1985 (For short, the Tariff Act) or sub-heading 8402.90 of the said schedule. The relevant entries of the Tariff Act are as follows:2. Both, the adjudicating authority and the Customs, Excise and Service Tax Appellate Tribunal (For short, the Tribunal) took the view that though clearances were made and transported as components of boiler, the same were liable to be classified under sub-heading 8402.10 and not under sub-heading 8402.90.3. In coming to the aforesaid conclusion both the authorities relied on an expert opinion of the Technical Adviser (Boilers), Ministry of Commerce and Industry dated 12.9.2003 the main part of which is as hereunder:Definition of Boiler under Indian Boilers Act, 1923:Under the above Act, "Boiler" means any closed vessel exceeding 22.75 ltrs. in capacity which is used expressly for generating steam under pressure and includes (i) any mounting (valves etc.); (ii) other fittings attached to such vessel; which, is wholly or partly under pressure when steam is shut off.Fittings include economizer (if integrated), feed pipe, steam pipe and the valves, since all these are attached to boiler and will work wholly or partly under pressure.Water at very high pressure is fed to the boiler by feed pump. Heat addition takes place in boiler wherein the water is converted into steam. To increase the efficiency, the steam has to be generated at higher pressure and higher temperature, which is done by the Economisers initially. The steam is further heated by Super Heaters and re-heaters to a high temperature ranging upto 540 deg. C or above depending upon the design parameters. Economisers, Superheater, Re-heaters essentially consists of tube bundles whole sole purpose is to heat the steam further to increase its efficiency.To monitor the system more effectively, various instruments are used to measure various parameters like pressure, temperature, flow of the media in various Sections of the boiler. Control Systems are used to ensure that these parameters are within the limits for safe operation.Components like E.S.P. Fans, Control Equipment constitutes auxiliary/accessories of Boiler and are not essential constitutes of Boiler, Even without these, a complete boiler will come into existence.It is thus clear that Boiler will come into existence on manufacture erection of the following:(i) Drum(ii) Fittings like;Feed pipe and Steam pipe;Economizer;Super heater and Re-heater.There are many other items in the boiler feed water lines which are used for increasing the efficiency but may not be essential(iii) Mountings like valves.Mountings and fittings attached to drum are under pressure and hence covered under the definition Boiler under the Indian Boilers Act.Components like Fans, Air pre-heaters, Electro Static precipitators Control Equipment constitute auxiliary/accessories of Boiler and Boiler will come into existence even without these auxiliary/accessories.The Boiler inspectorate is always involved in the inspection right from the stage of Raw-material Section to the dispatch and erection of various Components where Pressure is involved.It is a fact that the high capacity boilers cannot be transported in one lot to the site, therefore they have to be sent as individual item and sub-assemblies. Therefore, the parts which are essentially needed to construct a complete boiler may be considered under the term boiler. But the parts which are provided with the boiler to enhance the efficiency such as automation, data requisition, indicators, recorders etc. are used for ease and safe operation of boilers and cannot be considered as boiler parts.In the light of the above, BHEL may be asked to separate out the list of such parts (i) which are essential for constructing a boiler and (ii) the parts which are used in boilers but not essential as explained above.4. That apart, relying on the HSN note Part V Under Section XVI, as extracted below, the aforesaid two authorities concluded that such components which are essential to classify the boiler as a machine, even if transported as components, must be understood to have been transported as a complete machine. Therefore, levy of duty should be under sub-heading 8402.10 and not subheading 8402.90 as claimed by the Revenue.HSN note Part V Under Section XVI:For convenience of transport many machines and apparatus are transported in an unassembled state. Although in effect the goods are then a collection of parts, they are classified as being the machine in question and not in any separate heading for parts. The same applies to an incomplete machine having the features of the complete machine (see Part IV), presented unassembled (see also in this connection the General Explanatory Notes to Chapters 84 and 85). However unassembled components in excess of the numbered required for a complete machine or for an incomplete machine having the characteristics of a complete machine, are classified in their own appropriate heading. 5. Insofar as the particular assessment is concerned, from the report of the expert as extracted above, it is clear that the said expert had suggested that the Respondent-Assessee should be asked to file separate list of the parts which are essential for the boiler and other parts which are used in the boilers but which are not essential parts thereof.6. We do not know as to whether the aforesaid exercise has been carried out by the Revenue in the present assessment year. Be that as it may, in the face of the opinion of the expert and the HSN note, details of which have been extracted above, we are of the view that the Primary Authority as well as the First Appellate Authority was perfectly justified in coming to the conclusion that the components of the boilers cleared as parts but essential to put into operation the boilers, would be classifiable under sub-heading 8402.10 and not as claimed by Revenue under sub-heading 8402.90. | 0[ds]It is a fact that the high capacity boilers cannot be transported in one lot to the site, therefore they have to be sent as individual item and sub-assemblies. Therefore, the parts which are essentially needed to construct a complete boiler may be considered under the term boiler. But the parts which are provided with the boiler to enhance the efficiency such as automation, data requisition, indicators, recorders etc. are used for ease and safe operation of boilers and cannot be considered as boiler partsIn the light of the above, BHEL may be asked to separate out the list of such parts (i) which are essential for constructing a boiler and (ii) the parts which are used in boilers but not essential as explained above4. That apart, relying on the HSN note Part V Under Section XVI, as extracted below, the aforesaid two authorities concluded that such components which are essential to classify the boiler as a machine, even if transported as components, must be understood to have been transported as a complete machine. Therefore, levy of duty should be under sub-heading 8402.10 and not subheading 8402.90 as claimed by the Revenue5. Insofar as the particular assessment is concerned, from the report of the expert as extracted above, it is clear that the said expert had suggested that the Respondent-Assessee should be asked to file separate list of the parts which are essential for the boiler and other parts which are used in the boilers but which are not essential parts thereof6. We do not know as to whether the aforesaid exercise has been carried out by the Revenue in the present assessment year. Be that as it may, in the face of the opinion of the expert and the HSN note, details of which have been extracted above, we are of the view that the Primary Authority as well as the First Appellate Authority was perfectly justified in coming to the conclusion that the components of the boilers cleared as parts but essential to put into operation the boilers, would be classifiable under sub-heading 8402.10 and not as claimed by Revenue under sub-heading 8402.90. | 0 | 1,105 | 392 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. We have heard the learned Counsels for the parties and perused the relevant material. The issue arising in this appeal is whether the essential components/parts of a boiler cleared by the Assessee would attract duty under sub-heading 8402.10 of the first Schedule of Central Excise Tariff Act, 1985 (For short, the Tariff Act) or sub-heading 8402.90 of the said schedule. The relevant entries of the Tariff Act are as follows:2. Both, the adjudicating authority and the Customs, Excise and Service Tax Appellate Tribunal (For short, the Tribunal) took the view that though clearances were made and transported as components of boiler, the same were liable to be classified under sub-heading 8402.10 and not under sub-heading 8402.90.3. In coming to the aforesaid conclusion both the authorities relied on an expert opinion of the Technical Adviser (Boilers), Ministry of Commerce and Industry dated 12.9.2003 the main part of which is as hereunder:Definition of Boiler under Indian Boilers Act, 1923:Under the above Act, "Boiler" means any closed vessel exceeding 22.75 ltrs. in capacity which is used expressly for generating steam under pressure and includes (i) any mounting (valves etc.); (ii) other fittings attached to such vessel; which, is wholly or partly under pressure when steam is shut off.Fittings include economizer (if integrated), feed pipe, steam pipe and the valves, since all these are attached to boiler and will work wholly or partly under pressure.Water at very high pressure is fed to the boiler by feed pump. Heat addition takes place in boiler wherein the water is converted into steam. To increase the efficiency, the steam has to be generated at higher pressure and higher temperature, which is done by the Economisers initially. The steam is further heated by Super Heaters and re-heaters to a high temperature ranging upto 540 deg. C or above depending upon the design parameters. Economisers, Superheater, Re-heaters essentially consists of tube bundles whole sole purpose is to heat the steam further to increase its efficiency.To monitor the system more effectively, various instruments are used to measure various parameters like pressure, temperature, flow of the media in various Sections of the boiler. Control Systems are used to ensure that these parameters are within the limits for safe operation.Components like E.S.P. Fans, Control Equipment constitutes auxiliary/accessories of Boiler and are not essential constitutes of Boiler, Even without these, a complete boiler will come into existence.It is thus clear that Boiler will come into existence on manufacture erection of the following:(i) Drum(ii) Fittings like;Feed pipe and Steam pipe;Economizer;Super heater and Re-heater.There are many other items in the boiler feed water lines which are used for increasing the efficiency but may not be essential(iii) Mountings like valves.Mountings and fittings attached to drum are under pressure and hence covered under the definition Boiler under the Indian Boilers Act.Components like Fans, Air pre-heaters, Electro Static precipitators Control Equipment constitute auxiliary/accessories of Boiler and Boiler will come into existence even without these auxiliary/accessories.The Boiler inspectorate is always involved in the inspection right from the stage of Raw-material Section to the dispatch and erection of various Components where Pressure is involved.It is a fact that the high capacity boilers cannot be transported in one lot to the site, therefore they have to be sent as individual item and sub-assemblies. Therefore, the parts which are essentially needed to construct a complete boiler may be considered under the term boiler. But the parts which are provided with the boiler to enhance the efficiency such as automation, data requisition, indicators, recorders etc. are used for ease and safe operation of boilers and cannot be considered as boiler parts.In the light of the above, BHEL may be asked to separate out the list of such parts (i) which are essential for constructing a boiler and (ii) the parts which are used in boilers but not essential as explained above.4. That apart, relying on the HSN note Part V Under Section XVI, as extracted below, the aforesaid two authorities concluded that such components which are essential to classify the boiler as a machine, even if transported as components, must be understood to have been transported as a complete machine. Therefore, levy of duty should be under sub-heading 8402.10 and not subheading 8402.90 as claimed by the Revenue.HSN note Part V Under Section XVI:For convenience of transport many machines and apparatus are transported in an unassembled state. Although in effect the goods are then a collection of parts, they are classified as being the machine in question and not in any separate heading for parts. The same applies to an incomplete machine having the features of the complete machine (see Part IV), presented unassembled (see also in this connection the General Explanatory Notes to Chapters 84 and 85). However unassembled components in excess of the numbered required for a complete machine or for an incomplete machine having the characteristics of a complete machine, are classified in their own appropriate heading. 5. Insofar as the particular assessment is concerned, from the report of the expert as extracted above, it is clear that the said expert had suggested that the Respondent-Assessee should be asked to file separate list of the parts which are essential for the boiler and other parts which are used in the boilers but which are not essential parts thereof.6. We do not know as to whether the aforesaid exercise has been carried out by the Revenue in the present assessment year. Be that as it may, in the face of the opinion of the expert and the HSN note, details of which have been extracted above, we are of the view that the Primary Authority as well as the First Appellate Authority was perfectly justified in coming to the conclusion that the components of the boilers cleared as parts but essential to put into operation the boilers, would be classifiable under sub-heading 8402.10 and not as claimed by Revenue under sub-heading 8402.90.
### Response:
0
### Explanation:
It is a fact that the high capacity boilers cannot be transported in one lot to the site, therefore they have to be sent as individual item and sub-assemblies. Therefore, the parts which are essentially needed to construct a complete boiler may be considered under the term boiler. But the parts which are provided with the boiler to enhance the efficiency such as automation, data requisition, indicators, recorders etc. are used for ease and safe operation of boilers and cannot be considered as boiler partsIn the light of the above, BHEL may be asked to separate out the list of such parts (i) which are essential for constructing a boiler and (ii) the parts which are used in boilers but not essential as explained above4. That apart, relying on the HSN note Part V Under Section XVI, as extracted below, the aforesaid two authorities concluded that such components which are essential to classify the boiler as a machine, even if transported as components, must be understood to have been transported as a complete machine. Therefore, levy of duty should be under sub-heading 8402.10 and not subheading 8402.90 as claimed by the Revenue5. Insofar as the particular assessment is concerned, from the report of the expert as extracted above, it is clear that the said expert had suggested that the Respondent-Assessee should be asked to file separate list of the parts which are essential for the boiler and other parts which are used in the boilers but which are not essential parts thereof6. We do not know as to whether the aforesaid exercise has been carried out by the Revenue in the present assessment year. Be that as it may, in the face of the opinion of the expert and the HSN note, details of which have been extracted above, we are of the view that the Primary Authority as well as the First Appellate Authority was perfectly justified in coming to the conclusion that the components of the boilers cleared as parts but essential to put into operation the boilers, would be classifiable under sub-heading 8402.10 and not as claimed by Revenue under sub-heading 8402.90.
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STATE OF GOA Vs. NARAYAN V. GAONKAR & ORS | is a mere administrative exercise aimed at collecting tax revenues from the land. As such no legal evidentiary value can be attributed also to the said registration for the purpose of establishing ownership title or presuming possession on the land. 25. More so, the plaintiffs ought to have agitated for their claim with regard to survey No.11/1 and ought not to have withdrawn application dated 07.08.1975 before the Revenue Official. It is relevant to notice that in the suit which was filed by the plaintiffs any mention of the proceedings regarding records of rights of survey No.11/1 undertaken earlier were not referred to and the mention of proceedings under Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial court having dismissed the suit of the plaintiffs for declaring them owner of survey No.11/1, we do not find any justification for continuance of the names of the plaintiffs in survey No.11/1 of Village Sulcorna. 26. The State in its written statement has claimed that Sulcorna has declared as forest by Gazette Notification dated 11.01.1951 which Gazette was filed as Annexure AA-3 filed on the record which mentions Forests Sulcorna and the name of Village Sulcorna, the Court below had not placed reliance on the said Gazette only for the reason that the Gazette does not mention any survey number. Survey No.11 was situate in the Forest area is further proved by the documents brought on the record by the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for survey No.2 of Village Curpem and survey No.11 of Village Sulcorna. The conditions of the Lease Deed indicate that survey numbers on which Lease was granted situate in the Forest area, the relevant condition No.4 of the Lease is as follows: To enter upon reserved forests. 4. Notwithstanding anything in this Schedule contained the lessee/lessees shall not enter upon any reserve forests included in the said lands without previous sanction in writing of the District Forest Officer nor fell cut a use any timber or trees without obtaining the sanction in writing of that Officer nor otherwise than in accordance with such conditions as the State Government may prescribe. 27. In the Chapter of General Provisions, Clause 15 requires Lease status of forest land will remain unchanged. 28. The suit filed by the plaintiffs was to delete the name of Forest Department from survey No.11 which suit having been dismissed the name of the Forest Department continues with regard to survey o.11/1. Even though Gazette dated 11.01.1951 does not mention survey No.11 but Forest was declared in Village Sulcorna and Survey No.11 is forest land is proved by other evidence. We are satisfied that the counter- claim filed by the State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off. 29. Learned counsel for the respondents relying on the judgment of the Bombay High Court at Goa in Writ Petition No.158 of 2005 (Smt. Maria Teresa Philomena DRocha Pegado vs. State of Goa and others), has submitted that Portuguese Colonial Mining Law was in force prior to Goa becoming Union Territory and the State was owner of proprietorship of all deposits of minor minerals etc. which was so noted in the above case by the Bombay High Court. Learned counsel for the respondents has referred paragraphs 14 and 31 of the judgment which are to the following effect: 14. It would be relevant to refer to Article 2 of Decree dated 20.09.1906 which was a Portuguese Colonial Mining Law in force during the erstwhile regime, which reads thus: The proprietorship of deposits of metals and metalliferous minerals, including bismuth, arsenic, antimony, sulphur, graphite, combustible minerals with the exception of peat, bituminous substances and mineral oils, precious stones, alkalis, phosphates, mica and amianthus belongs to the State; such beds cannot be prospected or worked without licence and concession by Government in the terms of the present Decree.A perusal of Article 2 of the aforesaid decree would reveal that all metals and metal-liferous minerals belong to the State and such beds cannot be prospected or worked without licence and concession by the Government. 31. We are, therefore, of the considered view that in view of the provisions of sub- section (2) of Section 14 and Section 36 of the Land Revenue Code, read with the provisions of Article 2 of Decree dated 20.09.1906 which was a Portuguese Colonial Mining Law, the right in the minor minerals vests solely in the State Government and the State Government has all powers necessary for the purpose of enjoyment of such rights. We find that this position is fortified by the provisions of Section 24A of the said Act, which is applicable to all minerals, including minor minerals. 30. The above judgment of the Bombay High Court reiterated that it is the State which is the proprietor of all minerals beneath the land. There can be no dispute to the above proposition. For the purpose of this case what was relied by the appellant was that Mining Lease granted for survey No.11, Lease conditions clearly mention the area as forest area with the requirement to maintain the status of land as the forest land. The grant of Lease by the State is not disputed by the plaintiffs-respondents also. We, thus, are of the considered opinion that the name of the Forest Department recorded in survey No.11, deletion of which has been refused and the name of plaintiffs-respondents in the record in the manner and circumstances in which it came on the records of rights does not establish any claim of the plaintiffs-respondents and defendant has clearly made out the case for allowing counter-claim. The additional evidence brought on record by the State before this Court which has been accepted on record fully support the counter-claim of the defendant. We, thus, are of the view that counter-claim of the defendant-appellant deserves to be allowed and the judgment of courts below is to be modified to the above extent. | 1[ds]17. We have noticed above that as per Rule 5 in Form II notice was issued inviting all persons who have any interest in the lands in the village to furnish to him either in writing or orally information and objection. In the present case after draft of the Index of Lands prepared under Rule 6 objection was filed by Vishnu Shivram Gaonkar as noted above on which individual notice was also issued to him in Form VI asking him to appear on 20.10.197518. The record of proceeding sheet dated 20.10.1975 indicates that after recording the statement of Vishnu Shivram Gaonkar the case was closed. The above proceedings indicate that the objection filed by Vishnu Shivram Gaonkar was withdrawn and hence there was no decision taken in Dispute Case No.3. Even after withdrawal of the claim by the plaintiff, the names of plaintiffs, Vishnu Shivram Gaonkar, Narayan Vishnu Gaonkar and Rama S.F. Dessai were added by correcting the Form III in red ink as required by sub-Rule(6) of Rule 6. The entry of names of the above persons along with Forest Department was stated to be as per D.C.3 as is clear from Form III Annexure-2 brought on record by the appellant. A coloured print of above Annexure-2 has been placed before us by learned ASG which is taken on record, which indicates that in Form III the addition of names of three persons was by red ink. When Vishnu Shivram Gaonkar had withdrawn his claim for deletion of name of Forest Department, we fail to comprehend that as to how despite that withdrawal which is duly recorded in the proceedings their names can be added along with Forest Department against survey No.11/1. Thus, the recording of names of the plaintiffs in survey No.11/1 along with the name of the Forest Department was illegal and not as per Rule 6 of Rules, 1969. When there was no decision in favour of the plaintiffs, applicant on the objection dated 07.08.1975, there was no question of adding their names in Index of Lands against survey No.11/1. The addition of the names of the plaintiffs against survey No.11/1 was completely without jurisdiction and the said entry cannot be allowed to be continued19. That in the suit filed by the plaintiffs being Special Civil Suit No.64 of 1995, there is no mention of entire proceedings regarding correction of records undertaken in 1975. The plaintiffs in the suit did not disclose the aforesaid facts which were relevant for determining the issues in consideration in the suit. Plaintiffs thus have completely failed to justify the continuance of their names against survey No.11/120. From the additional evidence brought on the record by the State, it is clear that in the record which was published of the Village Sulcarna for survey No.11, it was the name of only Forest Department which was mentioned on survey No.11 area 230.45.00 hectares and the addition of the name of Vishnu Shivaram Gaonkar and two others were in pursuance of Dispute Case No.3. The Goa, Daman and Diu Land Revenue Code, 1968 was enacted to consolidate and amend the Law relating to Land and Land Revenue in the Union of territory of Goa, Daman and Diu as then existed23. We have already noticed our order dated 10.12.2019 where these additional documents have already been accepted with direction to the respondents to file a reply to the application. The respondents do not dispute of having raised the objection after Revenue records were published mentioning Forest Department against the survey No.11/1, when the plaintiffs-respondents have withdrawn their application on 20.10.1975, they cannot be allowed to object the Entry of Forest Department regarding survey No.11/1 as published in Form II24. The matriz document which is claimed to be the basis of rights by the plaintiffs-respondents is not the document of title25. More so, the plaintiffs ought to have agitated for their claim with regard to survey No.11/1 and ought not to have withdrawn application dated 07.08.1975 before the Revenue Official. It is relevant to notice that in the suit which was filed by the plaintiffs any mention of the proceedings regarding records of rights of survey No.11/1 undertaken earlier were not referred to and the mention of proceedings under Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial court having dismissed the suit of the plaintiffs for declaring them owner of survey No.11/1, we do not find any justification for continuance of the names of the plaintiffs in survey No.11/1 of Village Sulcorna26. The State in its written statement has claimed that Sulcorna has declared as forest by Gazette Notification dated 11.01.1951 which Gazette was filed as Annexure AA-3 filed on the record which mentions Forests Sulcorna and the name of Village Sulcorna, the Court below had not placed reliance on the said Gazette only for the reason that the Gazette does not mention any survey number. Survey No.11 was situate in the Forest area is further proved by the documents brought on the record by the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for survey No.2 of Village Curpem and survey No.11 of Village Sulcorna28. The suit filed by the plaintiffs was to delete the name of Forest Department from survey No.11 which suit having been dismissed the name of the Forest Department continues with regard to survey o.11/1. Even though Gazette dated 11.01.1951 does not mention survey No.11 but Forest was declared in Village Sulcorna and Survey No.11 is forest land is proved by other evidence. We are satisfied that the counter- claim filed by the State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off30. The above judgment of the Bombay High Court reiterated that it is the State which is the proprietor of all minerals beneath the land. There can be no dispute to the above proposition. For the purpose of this case what was relied by the appellant was that Mining Lease granted for survey No.11, Lease conditions clearly mention the area as forest area with the requirement to maintain the status of land as the forest land. The grant of Lease by the State is not disputed by the plaintiffs-respondents also. We, thus, are of the considered opinion that the name of the Forest Department recorded in survey No.11, deletion of which has been refused and the name of plaintiffs-respondents in the record in the manner and circumstances in which it came on the records of rights does not establish any claim of the plaintiffs-respondents and defendant has clearly made out the case for allowing counter-claim. The additional evidence brought on record by the State before this Court which has been accepted on record fully support the counter-claim of the defendant. We, thus, are of the view that counter-claim of the defendant-appellant deserves to be allowed and the judgment of courts below is to be modified to the above extent. | 1 | 6,447 | 1,228 | ### 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:
is a mere administrative exercise aimed at collecting tax revenues from the land. As such no legal evidentiary value can be attributed also to the said registration for the purpose of establishing ownership title or presuming possession on the land. 25. More so, the plaintiffs ought to have agitated for their claim with regard to survey No.11/1 and ought not to have withdrawn application dated 07.08.1975 before the Revenue Official. It is relevant to notice that in the suit which was filed by the plaintiffs any mention of the proceedings regarding records of rights of survey No.11/1 undertaken earlier were not referred to and the mention of proceedings under Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial court having dismissed the suit of the plaintiffs for declaring them owner of survey No.11/1, we do not find any justification for continuance of the names of the plaintiffs in survey No.11/1 of Village Sulcorna. 26. The State in its written statement has claimed that Sulcorna has declared as forest by Gazette Notification dated 11.01.1951 which Gazette was filed as Annexure AA-3 filed on the record which mentions Forests Sulcorna and the name of Village Sulcorna, the Court below had not placed reliance on the said Gazette only for the reason that the Gazette does not mention any survey number. Survey No.11 was situate in the Forest area is further proved by the documents brought on the record by the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for survey No.2 of Village Curpem and survey No.11 of Village Sulcorna. The conditions of the Lease Deed indicate that survey numbers on which Lease was granted situate in the Forest area, the relevant condition No.4 of the Lease is as follows: To enter upon reserved forests. 4. Notwithstanding anything in this Schedule contained the lessee/lessees shall not enter upon any reserve forests included in the said lands without previous sanction in writing of the District Forest Officer nor fell cut a use any timber or trees without obtaining the sanction in writing of that Officer nor otherwise than in accordance with such conditions as the State Government may prescribe. 27. In the Chapter of General Provisions, Clause 15 requires Lease status of forest land will remain unchanged. 28. The suit filed by the plaintiffs was to delete the name of Forest Department from survey No.11 which suit having been dismissed the name of the Forest Department continues with regard to survey o.11/1. Even though Gazette dated 11.01.1951 does not mention survey No.11 but Forest was declared in Village Sulcorna and Survey No.11 is forest land is proved by other evidence. We are satisfied that the counter- claim filed by the State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off. 29. Learned counsel for the respondents relying on the judgment of the Bombay High Court at Goa in Writ Petition No.158 of 2005 (Smt. Maria Teresa Philomena DRocha Pegado vs. State of Goa and others), has submitted that Portuguese Colonial Mining Law was in force prior to Goa becoming Union Territory and the State was owner of proprietorship of all deposits of minor minerals etc. which was so noted in the above case by the Bombay High Court. Learned counsel for the respondents has referred paragraphs 14 and 31 of the judgment which are to the following effect: 14. It would be relevant to refer to Article 2 of Decree dated 20.09.1906 which was a Portuguese Colonial Mining Law in force during the erstwhile regime, which reads thus: The proprietorship of deposits of metals and metalliferous minerals, including bismuth, arsenic, antimony, sulphur, graphite, combustible minerals with the exception of peat, bituminous substances and mineral oils, precious stones, alkalis, phosphates, mica and amianthus belongs to the State; such beds cannot be prospected or worked without licence and concession by Government in the terms of the present Decree.A perusal of Article 2 of the aforesaid decree would reveal that all metals and metal-liferous minerals belong to the State and such beds cannot be prospected or worked without licence and concession by the Government. 31. We are, therefore, of the considered view that in view of the provisions of sub- section (2) of Section 14 and Section 36 of the Land Revenue Code, read with the provisions of Article 2 of Decree dated 20.09.1906 which was a Portuguese Colonial Mining Law, the right in the minor minerals vests solely in the State Government and the State Government has all powers necessary for the purpose of enjoyment of such rights. We find that this position is fortified by the provisions of Section 24A of the said Act, which is applicable to all minerals, including minor minerals. 30. The above judgment of the Bombay High Court reiterated that it is the State which is the proprietor of all minerals beneath the land. There can be no dispute to the above proposition. For the purpose of this case what was relied by the appellant was that Mining Lease granted for survey No.11, Lease conditions clearly mention the area as forest area with the requirement to maintain the status of land as the forest land. The grant of Lease by the State is not disputed by the plaintiffs-respondents also. We, thus, are of the considered opinion that the name of the Forest Department recorded in survey No.11, deletion of which has been refused and the name of plaintiffs-respondents in the record in the manner and circumstances in which it came on the records of rights does not establish any claim of the plaintiffs-respondents and defendant has clearly made out the case for allowing counter-claim. The additional evidence brought on record by the State before this Court which has been accepted on record fully support the counter-claim of the defendant. We, thus, are of the view that counter-claim of the defendant-appellant deserves to be allowed and the judgment of courts below is to be modified to the above extent.
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added by correcting the Form III in red ink as required by sub-Rule(6) of Rule 6. The entry of names of the above persons along with Forest Department was stated to be as per D.C.3 as is clear from Form III Annexure-2 brought on record by the appellant. A coloured print of above Annexure-2 has been placed before us by learned ASG which is taken on record, which indicates that in Form III the addition of names of three persons was by red ink. When Vishnu Shivram Gaonkar had withdrawn his claim for deletion of name of Forest Department, we fail to comprehend that as to how despite that withdrawal which is duly recorded in the proceedings their names can be added along with Forest Department against survey No.11/1. Thus, the recording of names of the plaintiffs in survey No.11/1 along with the name of the Forest Department was illegal and not as per Rule 6 of Rules, 1969. When there was no decision in favour of the plaintiffs, applicant on the objection dated 07.08.1975, there was no question of adding their names in Index of Lands against survey No.11/1. The addition of the names of the plaintiffs against survey No.11/1 was completely without jurisdiction and the said entry cannot be allowed to be continued19. That in the suit filed by the plaintiffs being Special Civil Suit No.64 of 1995, there is no mention of entire proceedings regarding correction of records undertaken in 1975. The plaintiffs in the suit did not disclose the aforesaid facts which were relevant for determining the issues in consideration in the suit. Plaintiffs thus have completely failed to justify the continuance of their names against survey No.11/120. From the additional evidence brought on the record by the State, it is clear that in the record which was published of the Village Sulcarna for survey No.11, it was the name of only Forest Department which was mentioned on survey No.11 area 230.45.00 hectares and the addition of the name of Vishnu Shivaram Gaonkar and two others were in pursuance of Dispute Case No.3. The Goa, Daman and Diu Land Revenue Code, 1968 was enacted to consolidate and amend the Law relating to Land and Land Revenue in the Union of territory of Goa, Daman and Diu as then existed23. We have already noticed our order dated 10.12.2019 where these additional documents have already been accepted with direction to the respondents to file a reply to the application. The respondents do not dispute of having raised the objection after Revenue records were published mentioning Forest Department against the survey No.11/1, when the plaintiffs-respondents have withdrawn their application on 20.10.1975, they cannot be allowed to object the Entry of Forest Department regarding survey No.11/1 as published in Form II24. The matriz document which is claimed to be the basis of rights by the plaintiffs-respondents is not the document of title25. More so, the plaintiffs ought to have agitated for their claim with regard to survey No.11/1 and ought not to have withdrawn application dated 07.08.1975 before the Revenue Official. It is relevant to notice that in the suit which was filed by the plaintiffs any mention of the proceedings regarding records of rights of survey No.11/1 undertaken earlier were not referred to and the mention of proceedings under Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial court having dismissed the suit of the plaintiffs for declaring them owner of survey No.11/1, we do not find any justification for continuance of the names of the plaintiffs in survey No.11/1 of Village Sulcorna26. The State in its written statement has claimed that Sulcorna has declared as forest by Gazette Notification dated 11.01.1951 which Gazette was filed as Annexure AA-3 filed on the record which mentions Forests Sulcorna and the name of Village Sulcorna, the Court below had not placed reliance on the said Gazette only for the reason that the Gazette does not mention any survey number. Survey No.11 was situate in the Forest area is further proved by the documents brought on the record by the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for survey No.2 of Village Curpem and survey No.11 of Village Sulcorna28. The suit filed by the plaintiffs was to delete the name of Forest Department from survey No.11 which suit having been dismissed the name of the Forest Department continues with regard to survey o.11/1. Even though Gazette dated 11.01.1951 does not mention survey No.11 but Forest was declared in Village Sulcorna and Survey No.11 is forest land is proved by other evidence. We are satisfied that the counter- claim filed by the State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off30. The above judgment of the Bombay High Court reiterated that it is the State which is the proprietor of all minerals beneath the land. There can be no dispute to the above proposition. For the purpose of this case what was relied by the appellant was that Mining Lease granted for survey No.11, Lease conditions clearly mention the area as forest area with the requirement to maintain the status of land as the forest land. The grant of Lease by the State is not disputed by the plaintiffs-respondents also. We, thus, are of the considered opinion that the name of the Forest Department recorded in survey No.11, deletion of which has been refused and the name of plaintiffs-respondents in the record in the manner and circumstances in which it came on the records of rights does not establish any claim of the plaintiffs-respondents and defendant has clearly made out the case for allowing counter-claim. The additional evidence brought on record by the State before this Court which has been accepted on record fully support the counter-claim of the defendant. We, thus, are of the view that counter-claim of the defendant-appellant deserves to be allowed and the judgment of courts below is to be modified to the above extent.
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Raja Bajarang Bahadur Singh Vs. Jai Narain | or revisional power over that Court was not binding upon the Court of the other description. Such a situation led to great injustice. The litigant was bandied about from Court to Court and he could not get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of the same matter. A party litigant may not be allowed to take inconsistent positions in Court to the detriment of its opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Edn. pp. 783, 789, Mohammad Mehdi Ali Khan v. Mt. Sharafunnissa, (1900) 3 Oudh Cas 32 at pp. 35-37. On this principle it was held in Mahadeo Singh v. Pudai Singh, AIR 1931 Oudh 123 that where a Revenue Court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the Civil Court could not entertain the suit. Likewise in Saira Bibi v. Chandrapal Singh, ILR 4 Luck 159 at p. 166 = (AIR 1928 Oudh 503 at p. 506) it was held that when an appeal was originally instituted properly in the Revenue Court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that Court, it was not open to the party to raise the objection that the appeal could not be entertained by the Civil Court. This form of estoppel arises when the litigant takes inconsistent pleas as to jurisdiction in different Courts. It cannot be pressed into service, where, as in the present case, the Court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does not appear that the respondent raised before the Revenue Court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to preclude the respondent from raising the objection that the appeals did not lie to the Civil Court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the Civil Court or by the Revenue Court. Section 289 (2) is intended to prevent such grave miscarriage of justice.10. Section 289 (2) re-enacts the provision of Section 267 (2) of the Agra Tenancy Act, 1926.The object of Section 289 (2) is to avoid a deadlock between the Civil and the Revenue Courts on the question of Jurisdiction, and its provisions should receive a liberal construction. Section 289 (2) applies whenever any suit, application or appeal having been rejected either by the Civil Court or Revenue Court on account of want of jurisdiction is subsequently filed in the Court of the other description and the latter Court disagrees with the finding of the former. In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all Courts. A Court subordinate to the Collector cannot make the reference without the previous sanction of the Collector under Section 289 (3). It is implicit in Section 289 (3) that if the Collector refuses to give the sanction, the case will proceed as if there is no disagreement with the finding of the former Court.11.In a case falling within Section 289 (2), only the Court in which the proceeding in subsequently instituted can disagree with the finding of the former Court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other Court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former Court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional Court or any other Court.12. In the present case the respondent did not raise any objection before the Additional Civil Judge that the Civil Court was not competent to entertain the appeals.The Additional Civil Judge did not make any reference to the High Court under Section 289 (2). He decided the appeal on the merits and did not disagree with the finding of the Revenue Court on the question of jurisdiction,. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the Revenue Court on the question of jurisdiction. In these circumstances, it was not open to the respondent to raise the objection in the High Court that the Civil Court was not competent to hear the appeals. In view of the fact that no reference under Section 289 (2) was made, the finding of the Revenue Court that the Civil Court was competent to entertain the appeals could not be challenged in the High Court.The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to entertain the appeals.13. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decree passed in the two suits. Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section 144. | 1[ds]5. It is common case that suits Nos. 87 of 1948 and 2/12 of 1948 were of the nature specified in Group B of the fourth schedule to the U.P. Tenancy Act. In view of Section 265 (2) read with Section 271 (2) appeals from orders in proceedings under Section 144 of the Code of Civil Procedure arising out of the two suits lay to the Revenue Court. The appeals did not lie to the Civil Court under Sections 265 (3) and 286 (4) read with Section 271 (2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the Civil Court. But the more important question is whether having regard to the scheme of the U. P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the Civil Court to entertain the appeals could be raised in the Highthe present case it does not appear that the respondent raised before the Revenue Court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to preclude the respondent from raising the objection that the appeals did not lie to the Civil Court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the Civil Court or by the Revenue Court. Section 289 (2) is intended to prevent such grave miscarriage ofa case falling within Section 289 (2), only the Court in which the proceeding in subsequently instituted can disagree with the finding of the former Court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other Court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former Court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional Court or any other Court.12. In the present case the respondent did not raise any objection before the Additional Civil Judge that the Civil Court was not competent to entertain the appeals.The Additional Civil Judge did not make any reference to the High Court under Section 289 (2). He decided the appeal on the merits and did not disagree with the finding of the Revenue Court on the question of jurisdiction,. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the Revenue Court on the question of jurisdiction. In these circumstances, it was not open to the respondent to raise the objection in the High Court that the Civil Court was not competent to hear the appeals. In view of the fact that no reference under Section 289 (2) was made, the finding of the Revenue Court that the Civil Court was competent to entertain the appeals could not be challenged in the High Court.The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to entertain the appeals.13. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decree passed in the two suits. Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section289 vests in the High Court a special jurisdiction. The decision of the High Court given on a reference to it under Sec. 289 is binding on all Courts. A reference can be made under Section 289 (1) if any Court doubts its own competence to entertain any proceeding The reference under Section 289 (1) is optional. Without making any reference the Court may refuse to entertain the proceeding on the ground of want of jurisdiction. But the Court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan v. Harbans Singh, AIR 1930 All 254. Before the enactment of Section 289 (2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other Court. As neither Court was bound by the finding of the other, the litigant could not get relief in any forum. Section 289 (2) has been specially enacted to avoid such a deadlock. In such a situation, Section 289 (2) compels the Court to refer the matter to the High Court and to obtain a decision which will bind all the Courts. | 1 | 3,303 | 949 | ### Instruction:
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or revisional power over that Court was not binding upon the Court of the other description. Such a situation led to great injustice. The litigant was bandied about from Court to Court and he could not get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of the same matter. A party litigant may not be allowed to take inconsistent positions in Court to the detriment of its opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Edn. pp. 783, 789, Mohammad Mehdi Ali Khan v. Mt. Sharafunnissa, (1900) 3 Oudh Cas 32 at pp. 35-37. On this principle it was held in Mahadeo Singh v. Pudai Singh, AIR 1931 Oudh 123 that where a Revenue Court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the Civil Court could not entertain the suit. Likewise in Saira Bibi v. Chandrapal Singh, ILR 4 Luck 159 at p. 166 = (AIR 1928 Oudh 503 at p. 506) it was held that when an appeal was originally instituted properly in the Revenue Court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that Court, it was not open to the party to raise the objection that the appeal could not be entertained by the Civil Court. This form of estoppel arises when the litigant takes inconsistent pleas as to jurisdiction in different Courts. It cannot be pressed into service, where, as in the present case, the Court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does not appear that the respondent raised before the Revenue Court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to preclude the respondent from raising the objection that the appeals did not lie to the Civil Court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the Civil Court or by the Revenue Court. Section 289 (2) is intended to prevent such grave miscarriage of justice.10. Section 289 (2) re-enacts the provision of Section 267 (2) of the Agra Tenancy Act, 1926.The object of Section 289 (2) is to avoid a deadlock between the Civil and the Revenue Courts on the question of Jurisdiction, and its provisions should receive a liberal construction. Section 289 (2) applies whenever any suit, application or appeal having been rejected either by the Civil Court or Revenue Court on account of want of jurisdiction is subsequently filed in the Court of the other description and the latter Court disagrees with the finding of the former. In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all Courts. A Court subordinate to the Collector cannot make the reference without the previous sanction of the Collector under Section 289 (3). It is implicit in Section 289 (3) that if the Collector refuses to give the sanction, the case will proceed as if there is no disagreement with the finding of the former Court.11.In a case falling within Section 289 (2), only the Court in which the proceeding in subsequently instituted can disagree with the finding of the former Court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other Court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former Court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional Court or any other Court.12. In the present case the respondent did not raise any objection before the Additional Civil Judge that the Civil Court was not competent to entertain the appeals.The Additional Civil Judge did not make any reference to the High Court under Section 289 (2). He decided the appeal on the merits and did not disagree with the finding of the Revenue Court on the question of jurisdiction,. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the Revenue Court on the question of jurisdiction. In these circumstances, it was not open to the respondent to raise the objection in the High Court that the Civil Court was not competent to hear the appeals. In view of the fact that no reference under Section 289 (2) was made, the finding of the Revenue Court that the Civil Court was competent to entertain the appeals could not be challenged in the High Court.The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to entertain the appeals.13. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decree passed in the two suits. Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section 144.
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5. It is common case that suits Nos. 87 of 1948 and 2/12 of 1948 were of the nature specified in Group B of the fourth schedule to the U.P. Tenancy Act. In view of Section 265 (2) read with Section 271 (2) appeals from orders in proceedings under Section 144 of the Code of Civil Procedure arising out of the two suits lay to the Revenue Court. The appeals did not lie to the Civil Court under Sections 265 (3) and 286 (4) read with Section 271 (2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the Civil Court. But the more important question is whether having regard to the scheme of the U. P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the Civil Court to entertain the appeals could be raised in the Highthe present case it does not appear that the respondent raised before the Revenue Court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to preclude the respondent from raising the objection that the appeals did not lie to the Civil Court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the Civil Court or by the Revenue Court. Section 289 (2) is intended to prevent such grave miscarriage ofa case falling within Section 289 (2), only the Court in which the proceeding in subsequently instituted can disagree with the finding of the former Court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other Court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former Court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional Court or any other Court.12. In the present case the respondent did not raise any objection before the Additional Civil Judge that the Civil Court was not competent to entertain the appeals.The Additional Civil Judge did not make any reference to the High Court under Section 289 (2). He decided the appeal on the merits and did not disagree with the finding of the Revenue Court on the question of jurisdiction,. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the Revenue Court on the question of jurisdiction. In these circumstances, it was not open to the respondent to raise the objection in the High Court that the Civil Court was not competent to hear the appeals. In view of the fact that no reference under Section 289 (2) was made, the finding of the Revenue Court that the Civil Court was competent to entertain the appeals could not be challenged in the High Court.The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to entertain the appeals.13. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decree passed in the two suits. Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section289 vests in the High Court a special jurisdiction. The decision of the High Court given on a reference to it under Sec. 289 is binding on all Courts. A reference can be made under Section 289 (1) if any Court doubts its own competence to entertain any proceeding The reference under Section 289 (1) is optional. Without making any reference the Court may refuse to entertain the proceeding on the ground of want of jurisdiction. But the Court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan v. Harbans Singh, AIR 1930 All 254. Before the enactment of Section 289 (2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other Court. As neither Court was bound by the finding of the other, the litigant could not get relief in any forum. Section 289 (2) has been specially enacted to avoid such a deadlock. In such a situation, Section 289 (2) compels the Court to refer the matter to the High Court and to obtain a decision which will bind all the Courts.
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Wakkar Vs. State Of U.P | Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution. 20. Now the only question that remains for our consideration is whether the case on hand is one of over implication? 21. Learned senior counsel for the appellants strenuously contended that there is no evidence available on record to show the involvement of these appellants in the crime. The submission was that no motive has been suggested as against these appellants as to why they should commit the murder of the deceased. We shall consider the same. 22. It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/- in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext. Ka-1) initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the said accused.24. Whether the case falls in the category of `rarest of rare for awarding death sentence? There is no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the death sentence. | 0[ds]The High Court, in our considered opinion, on reappreciation of the evidence available on record, believed the evidence of PWs 1 and 3 in this regard and rightly taken circumstances into consideration leading to an irresistible conclusion that these three accused namely Wakkar, Akhlaq and Imtiaz were involved in the commission of the crime. It is also crucial to note that upon suspicion, PW 1 insisted Akhlaq to show the first floor room of his shop but there was no response whatsoever as the accused just avoided stating that he was not in possession of the key of the locked room and at that point of time, the accused Akhlaq was very nervous. It is at that time, PW 1 became suspicious about the whole thing and in the process, PW 1 with the help of a ladder, climbed to the roof of the said first floor room of the shop from behind and on reaching the roof got down through the stairs of the first floor and noticed scattered blood on the floor and found pieces of dead body of his brother. The trial Court and as well as the High Court have properly appreciated the evidence of PW 1 in this regard and there is nothing on record to disagree with the view taken by the Courts below.18. PW 6 is one Sompal who heard the human shrieks coming out from the first floor room of the shop belonging to the accused Akhlaq. This witness has a furniture shop in the neighbourhood of the shop of Akhlaq. It is in his evidence that he told Zakaullah (PW 1) that in the previous night he had heard human shrieks coming out of the first floor room of the shop. This witness was not subjected to any cross examination except by the counsel representing the accused Akhlaq. We cannot disbelieve the presence of this witness in his own shop at about 9 p.m. on the fateful night. It is in his evidence that on that fateful night of the incident, there was some `pooja in the vicinity and therefore, he stayed back to have some prasad after pooja. His presence at that time in the neighbourhood of the place of incident cannot be doubted. No particular reason suggested to him in the cross examination as to why he should give a false statement.19. The last one of the foremost circumstances which is brought on record through the evidence of the witnesses examined on behalf of the prosecution relates to the recoveries of incriminating articles made from the accused Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis ofrecovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution.It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext.initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the saidis no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the deathis not even an iota of evidence suggesting that the deceased and the appellants were last seen together and there was no motive attributed to the appellants herein for indulging in the ghastly crime of committing murder of the deceased. | 0 | 5,239 | 1,450 | ### Instruction:
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Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution. 20. Now the only question that remains for our consideration is whether the case on hand is one of over implication? 21. Learned senior counsel for the appellants strenuously contended that there is no evidence available on record to show the involvement of these appellants in the crime. The submission was that no motive has been suggested as against these appellants as to why they should commit the murder of the deceased. We shall consider the same. 22. It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/- in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext. Ka-1) initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the said accused.24. Whether the case falls in the category of `rarest of rare for awarding death sentence? There is no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the death sentence.
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0
### Explanation:
in the neighbourhood of the place of incident cannot be doubted. No particular reason suggested to him in the cross examination as to why he should give a false statement.19. The last one of the foremost circumstances which is brought on record through the evidence of the witnesses examined on behalf of the prosecution relates to the recoveries of incriminating articles made from the accused Akhlaq, Wakkar and Imtiaz. It is on record that blood stained knives and daggers allegedly used in the crime and the blood stained scooter, trouser and watch belonging to the deceased were recovered and these articles have contained human blood stains on them. These articles are said to have been recovered on the disclosure made by the appellants to the police. There was some criticism that there were no independent witnesses to the recovery except PW 1 and the Investigating Officer, R.P. Sharma, PW 14. But, we are not inclined to reject the evidence of PW 1 merely because he happened to be the brother of the deceased. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis ofrecovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court and as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution.It is in the evidence of PW 1 that the accused Nanha Pahalwan, Salman and Imtiaz are real brothers. Wakkar is none other than the son of their step brother Irshad. The evidence available on record shows that the deceased Sujaullah invested a sum of Rs.60,000/in the lottery/money circulation scheme which was being run by these persons along with Akhlaq. The deceased was repeatedly demanding for return of his amount from all the accused. In the circumstances it becomes difficult to accept the submission of learned senior counsel that the appellants Wakkar and Imtiaz were in no way involved in the conduct of business of lottery/money circulation scheme along with the accused Akhlaq at the shop belonging to Akhlaq. For the aforesaid reasons, we hold that the trial Court and as well as the High Court have rightly concluded that the immediate impelling motive on the part of the appellants which led them to commit the crime in question is traceable to their involvement in the business and persistent demands from the deceased for return of his money. We are not inclined to accept the submission made by the learned senior counsel that there is no evidence suggesting that the appellants were also involved in the said finance business along with Akhlaq. Like Akhlaq, the appellants also had the impelling motive which led them to commit the crime in question. It is not a case of any over implication. In this context, the evidence of PW1 becomes relevant that he noticed the accused Akhlaq, Imtiaz and Wakkar along with two other persons coming down from the stairs of the first floor room of Akhlaqs shop where the dead body of the deceased was later on found. The findings recorded by the trial Court and confirmed in appeal by the High Court finding the appellants to be guilty of the charged offences along with Akhlaq are unassailable. Both these appellants have been rightly convicted for the offences so charged.23. What remains for our consideration is whether the High Court committed any error in acquitting the accused persons Salman and Nanha Pahalwan. They were convicted only for the offence of illegal possession of the illicit arms punishable under Section 25(4) of the Arms Act. The High Court rightly refused to convict them based only on the recovery of incriminating material objects. The High Court has noted that their names did not find place in the FIR (Ext.initially given at the police station by PW 1 which consists of the names of three accused persons Akhlaq, Wakkar and Imtiaz and two more persons whom PW 1 was not able to identify. The names of Nanha Pahalawan and Salman have figured on subsequent information received by PW 1. The circumstance pressed into service that the deceased was last seen in the company of the accused including Nanha Pahalwan and Salman has been rightly disbelieved by the High Court. The statement of Irfan `panwala which is the root suggesting that the deceased was last seen with the accused including Nanha Pahalwan and Salman is of no consequence since he has not been examined as a witness by the prosecution. Thus, there is no evidence whatsoever to connect Nanha Pahalwan and Salman with the commission of the crime. The High Court, in our considered opinion, rightly acquitted both the saidis no direct evidence as to the manner in which the gruesome murder had taken place. It is not possible to discern and arrive at any definite conclusion as to the role played by each of the accused in the commission of the dastardly crime. No doubt they committed the crime in cold blood but did it quite stealthly. The entire case rests on the circumstantial evidence. The High Court having taken all relevant factors into consideration rightly came to the conclusion that the case is not the one which falls in the category of `rarest of rare. We are in agreement with the conclusion arrived at by the High Court and its decision to award life imprisonment alone and not the deathis not even an iota of evidence suggesting that the deceased and the appellants were last seen together and there was no motive attributed to the appellants herein for indulging in the ghastly crime of committing murder of the deceased.
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M/S ZHEJIANG BONLY ELEVATOR GUIDE RAIL MANUFACTURE CO. LTD Vs. M/S JADE ELEVATOR COMPONENTS | circumstances of the case.2. The petitioner, company incorporated under the laws of People?s Republic of China having its office at Sanquiao Village, Fuchun Street, Fuyang, China, is engaged in the business of, inter alia, exporting and supplying high quality elevator guiderails, fish-plates, accessories and allied goods. The respondent, a partnership firm based in India having its office at Plot No.455, Road No.11, ?A? Cross Road, GIDC, Kathwada, Ahmedabad – 382430, Gujarat, is engaged in the business of supplying elevator components for use in the modernization of existing lifts and the new design of the elevator.3. The contract, namely, Commission Processing Contract (hereinafter referred to as „the Contract?) was entered into between the parties on 11.09.2014 in respect of supply of certain products under the Contract. In the course of performance of the Contract, as certain differences had arisen and the parties were unable to amicably settle the disputes which fell within the scope of the arbitration clause, the petitioner appointed Justice V.S. Agarwal, former Judge, High Court of Judicature at New Delhi as the sole arbitrator. On 30.03,2018, the petitioner called upon the respondent to consent to the appointment of the sole arbitrator within a period of thirty days from the receipt of the notice. The respondent received the said notice on 31.03.2018 and the respondent in its reply dated 05.04.2018 refused to concur and consent to the appointment of the sole arbitrator. Because of the aforesaid situation, the petitioner has been compelled to move this Court for appointment of the sole arbitrator. When the matter was listed before this Court after service of notice, the learned counsel for the respondent has placed reliance on the reply dated 05.04.2018 given by the counsel for the respondent. In the said reply, the facts asserted by the petitioner have been disputed. That apart, it has been stated that the claims put forth are beyond the provisions of the Contract.4. To appreciate the controversy, it is required to be seen whether there is an arbitration clause for resolution of the disputes. Clause 15 of the agreement as translated in English reads as follows:-?15. Dispute handling: Common processing contract disputes, the parties should be settled through consultation; consultation fails by treatment of to the arbitration body for arbitration or the court.?5. It is submitted by learned counsel for the petitioner that if the clause of „dispute handling? is scrutinized appropriately, the disputes are to be settled through consultation and, if the consultation fails by treatment of to the arbitration body for arbitration or Court and, therefore, the matter has to be referred to arbitration. It is canvassed by him that the clause is not categorically specific that it has to be adjudicated in a court of law. It leads to choices and the choice expressed by the petitioner is arbitration.6. Learned counsel for the respondent, in his turn, would urge that when it is stated arbitration or Court, the petitioner should knock at the doors of the competent court but not resort to arbitration, for the clause cannot be regarded as an arbitration clause which stipulates that the disputes shall be referred to arbitration.7. To appreciate the clause in question, it is necessary to appositely understand the anatomy of the clause. It stipulates the caption given to the clause „dispute handling?. It states that the disputes should be settled through consultation and if the consultation fails by treatment of to the arbitration body for arbitration or the court. On a query being made, learned counsel for the parties very fairly stated that though the translation is not happily worded, yet it postulates that the words ?arbitration or the court? are undisputable as far as the adjudication of the disputes is concerned. There is assertion that disputes have arisen between the parties. The intention of the parties, as it flows from the clause, is that efforts have to be made to settle the disputes in an amicable manner and, therefore, two options are available, either to go for arbitration or for litigation in a court of law.8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail Limited (2008) 10 SCC 308 . In the said agreement, clause No.13 dealt with the settlement of disputes. Clauses 13.2 and 13.3 that throw light on the present case were couched in the following language:-?13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.?9. Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India held thus:-?Furthermore, from the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.?10. The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration. 11. In the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties. | 1[ds]8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail LimitedSubject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of theagreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevantagreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India heldfrom the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration.(2008) 10 SCCIn the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties. | 1 | 1,221 | 320 | ### 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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circumstances of the case.2. The petitioner, company incorporated under the laws of People?s Republic of China having its office at Sanquiao Village, Fuchun Street, Fuyang, China, is engaged in the business of, inter alia, exporting and supplying high quality elevator guiderails, fish-plates, accessories and allied goods. The respondent, a partnership firm based in India having its office at Plot No.455, Road No.11, ?A? Cross Road, GIDC, Kathwada, Ahmedabad – 382430, Gujarat, is engaged in the business of supplying elevator components for use in the modernization of existing lifts and the new design of the elevator.3. The contract, namely, Commission Processing Contract (hereinafter referred to as „the Contract?) was entered into between the parties on 11.09.2014 in respect of supply of certain products under the Contract. In the course of performance of the Contract, as certain differences had arisen and the parties were unable to amicably settle the disputes which fell within the scope of the arbitration clause, the petitioner appointed Justice V.S. Agarwal, former Judge, High Court of Judicature at New Delhi as the sole arbitrator. On 30.03,2018, the petitioner called upon the respondent to consent to the appointment of the sole arbitrator within a period of thirty days from the receipt of the notice. The respondent received the said notice on 31.03.2018 and the respondent in its reply dated 05.04.2018 refused to concur and consent to the appointment of the sole arbitrator. Because of the aforesaid situation, the petitioner has been compelled to move this Court for appointment of the sole arbitrator. When the matter was listed before this Court after service of notice, the learned counsel for the respondent has placed reliance on the reply dated 05.04.2018 given by the counsel for the respondent. In the said reply, the facts asserted by the petitioner have been disputed. That apart, it has been stated that the claims put forth are beyond the provisions of the Contract.4. To appreciate the controversy, it is required to be seen whether there is an arbitration clause for resolution of the disputes. Clause 15 of the agreement as translated in English reads as follows:-?15. Dispute handling: Common processing contract disputes, the parties should be settled through consultation; consultation fails by treatment of to the arbitration body for arbitration or the court.?5. It is submitted by learned counsel for the petitioner that if the clause of „dispute handling? is scrutinized appropriately, the disputes are to be settled through consultation and, if the consultation fails by treatment of to the arbitration body for arbitration or Court and, therefore, the matter has to be referred to arbitration. It is canvassed by him that the clause is not categorically specific that it has to be adjudicated in a court of law. It leads to choices and the choice expressed by the petitioner is arbitration.6. Learned counsel for the respondent, in his turn, would urge that when it is stated arbitration or Court, the petitioner should knock at the doors of the competent court but not resort to arbitration, for the clause cannot be regarded as an arbitration clause which stipulates that the disputes shall be referred to arbitration.7. To appreciate the clause in question, it is necessary to appositely understand the anatomy of the clause. It stipulates the caption given to the clause „dispute handling?. It states that the disputes should be settled through consultation and if the consultation fails by treatment of to the arbitration body for arbitration or the court. On a query being made, learned counsel for the parties very fairly stated that though the translation is not happily worded, yet it postulates that the words ?arbitration or the court? are undisputable as far as the adjudication of the disputes is concerned. There is assertion that disputes have arisen between the parties. The intention of the parties, as it flows from the clause, is that efforts have to be made to settle the disputes in an amicable manner and, therefore, two options are available, either to go for arbitration or for litigation in a court of law.8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail Limited (2008) 10 SCC 308 . In the said agreement, clause No.13 dealt with the settlement of disputes. Clauses 13.2 and 13.3 that throw light on the present case were couched in the following language:-?13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.?9. Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India held thus:-?Furthermore, from the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.?10. The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration. 11. In the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties.
### Response:
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8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail LimitedSubject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of theagreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevantagreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India heldfrom the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration.(2008) 10 SCCIn the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties.
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M/S. Shinde Brothers & Others Vs. Deputy Commissioner, Raichur & Others | , as do other provincial Acts, for lump sum payments in certain cases by manufacturers and retailers, which may be described as payments either for the privilege of selling alcohol, or as consideration for the temporary grant of a monopoly; but these are clearly not excise duties or anything like them. Provision was also made in most provincial Acts for the payment of licence fees in connection with the production or sale of alcohol in the Province; but these fees are mentioned in the Devolution Rules entry in addition to excise duties and are, therefore, something different from them." 25. Mr. Gokhale also relies on the legislative practice existing before the Government of India Act, 1935, came into force and his contention is that all the Acts existing before the Government of India Act, 1935, imposed excise duties and collected them by auctioning the privilege of sale or manufacture. The Legislative practice is not of any assistance because all duties collected under these Acts were not excise duties. We are not concerned here with the case of manufacture or the privilege of manufacture, and it is not necessary for us to decide whether Chief Justice Gwyer was right in so far as the auction of the privilege of manufacturing excisable article is concerned. But fit is interesting to note that even in Australia where a very wide meaning has been given to the word "excise", a fee for a mere licence to engage in business even if it be indirectly connected with production or manufacture has not been held to be an excise duty. The High Court of Australia held in Peterswald v. Bartley, 1 CLR 497 , that the State Act imposing a licence fee upon brewers as a condition precedent to the carrying on of their business and punishing non-compliance with its provisions was not opposed to S. 90 of the Australian Constitution. It may be that Chief Justice Gwyer had this case in mind when he made the observations reproduced above. Recently in Dennis Hotels Pvt. Ltd. v. Victoria, 33 ALJR 470, the High Court of Australia, by majority, held that S. 19 (1) (a) of the Licensing Act, 1958 (Vic.) which imposed fees for a Victuallers licence calculated at "equal to the sum of six per centum of the gross amount (including any duties thereon) paid or payable for all liquors which during the 12 months ended on the last day of June preceding the date of application for the grant or renewal of the licence was purchased for the premises was valid as it did not impose any excise duty within S. 90 of the Australian Constitution. 26. It is now necessary to consider the decision of this Court in 1962 Supp (2) SCR 741 (AIR 1962 SC 922 ), Disting. This decision is of course binding on us, but, in our opinion, this case is distinguishable. The question before the Court was whether Cochin Tobacco, Act, 1084 (Cochin Act VII of 1084 M.E.) and Travancore Tobacco Regulation, 1087 (Travancore 1 of 1087 M.E.) were laws corresponding to the Central Excise Act, and within Ss. 11 (1) and 13 (2) of the Finance Act, 1950. The Court was not concerned with the question whether the levies being made under these Acts were strictly excise duties within Item 51, List II and this is quite apparent from the fact that even though these Acts also imposed import duties, these were held in substance to be Acts corresponding to the Central Excise Act. Further the only system in force for the collection of tobacco revenue was to auction what was called A class and B class shops. There was no other duty levied on tobacco at all. As we have already said, it depends on the facts of each case whether in view of the scheme of the Act and the various provisions and the rules the revenue being obtained in an excise duty or not. It is true that Wanchoo, J.. referred to the practice of public auctions of the right to possess and sell excisable goods, but what he said was that the amount realised from these auctions was excise revenue, he did not say that the amount realized was excise duty as such in the strict sense of the term. 27. We may now deal with the propositions submitted by Mr. Gokhale. The first point taken by Mr. Gokhale is not sound. It is contrary to what has been consistently laid down by this Court: that it must be shown in every case that the duty has been levied on goods which have been produced or manufactured, the taxable event being production or manufacture of goods. 28. We also consider that his second proposition is not sound. There is no presumption that if no other taxable event has intervened, the levy must be treated to be connected with production or manufacture. This, as we have said above, must depend upon the facts of each case. But it must be positively shown that the taxable event for the duty which has been levied is manufacture or production of the article. We agree with his contention that the method of its collection is not decisive but, in our opinion in cases of doubt it may throw some light on this question. 29. Mr. Setalvad who appears in the appeals concerned with licenses for arrack points out that Para. 29 (a) of the General Conditions applicable to all excise and opium licenses specifically provides that the manufacturers of arrack and other country spirits as well as the licensees of arrack Bonded Depots are prohibited from holding any interest in the retail vend of arrack or in the vend of other country spirits and from employing any person who has such interest. He says that this strengthens his case because the money realised by the sale of licenses for vending arrack can have no relation to the manufacture or production of arrack. There is force in his contention. | 1[ds]t appears to us that by Ss. 12 and 15 of the Act manufacture and sale of toddy is prohibited, but S. 16 enables the Government to grant an exclusive or other privilege, inter alia, of manufacturing or selling by retail. It is the latter privilege which was auctioned under the two notifications mentioned above. Section 17 is the charging section and it is quite clear that the word duty in the opening sentence does not mean only excise duty. If an import duty or export duty is levied under S. 17 it would not be an excise duty within Entry 51, List II. Section 18 prescribes the modes of levy of the duties. We are concerned with the mode mentioned in S. 18 (c) (2), i.e., by payment of a sum in consideration of the grant of exclusive or other privileges of selling by retail. It is noteworthy that S. 28 distinguishes amount due to the Government by any grantee of a privilege from duties, taxes and feesWe are unable to accept this contention because some at least of the duties collected under S. 18 (b) would be excise duties. However, this much may be conceded that the Mysore Excise Act not only does not expressly call the duty collected under S. 18 (c) (2) all excise duty, but in S. 28 seems to mention it differentlyThe licences granted to the petitioner were governed by detailed regulatory provisions regarding sale, tent Condition No. 2 makes it clear that the license is in the main for selling. Further if he taps toddy he has to obtain toddy-tapping licences and pay feesWe have already mentioned that the petitioner obtained the privilege of selling toddy at certain shops by bidding at auctions held in pursuance of the two notifications mentioned aboveWe are, however, not impressed by any of these arguments. It seems to us clear that the legislature was levying a health cess on a number of items of State revenue or tax and it adopted the form of calling it a cess and prescribed the rate of nine naye paise in the rupee on the State revenue or tax. Section 4 of the impugned Act makes it quite clear that the cess is leviable and recoverable in the same manner as items of land revenue, State revenue or tax. In the context, the word on in S. 3 does not indicate that the subject-matter of taxation is land revenue or State revenue, but that 9 per cent of the land revenue or State revenue is to be levied and collected, the subject-matter remaining the same as in the law imposing land revenue or any duty or tax. If we read Ss. 3 and 4 together the fact that the words "surcharge" or additional duty" have not been mentioned does not detract from the real substance of the legislation. Accordingly we hold that the Mysore Legislature was competent to enact the law under the various entries of List II which enable it to levy land revenue or the duties of excise, or the other taxes mentioned in S. 3 (iii) of the impugned Actcases establish that in order to be an excise, duty (a) the levy must be upon goods, and (b) the taxable event must be the manufacture of production of goods. Further the levy need not be imposed at the stage of production or manufacture but may be imposed later21. But it is not easy to decide in a particular case whether the particular levy is a levy in respect of manufacture or production of goods. It appears to us that this question has to be decided on the facts of each case, but in deciding the question certain principles must be borne in mind. First, one of the essential characteristics of an excise duty is uniformity of incidenceis difficult to see how the State can fix countervailing duties at the same or lower rates unless the rate of excise as such is known or can be ascertained. Similarly, S. 64-A of the Indian Sale of Goods Act, 1930, contemplates a uniformity of incidencethe duty must be closely related to production or manufacture of goods. It does not matter if the levy is made not at the moment of production or manufacture but at a later stage. If a duty has been levied on an excisable article but this duty is collected from a retailer it would not necessarily cease to be an excise duty. Thirdly, if a levy is made for the privilege of selling an excisable article and the excisable article has already borne the duty and the duty has been paid, there must be clear terms in the charging section to indicate that what is being levied for the purpose of privilege of sale is in fact a duty of exciseFirst, it is a payment for the exclusive privilege of selling toddy from certain shops. The licensee pays what he considers to be equivalent to the value of the right. Secondly, it has no close relation to the production or manufacture of toddy. Thirdly, the only relation it has to the production or manufacture of toddy is that it enables the licensee to sell it. But he may sell little, less or more than he anticipated, depending on various factors. Fourthly, toddy has already paid one excise duty in the form of tree-tax. If the petitioner taps toddy he pays tree tax, but he need not tap himself. Fifthly, the duty is not uniform in incidence because the amount collected has no relation to the quantity or quality of the product but has only relation to what the petitioner thought he could recoup by the sale of the excisable articles. What he recoups would depend upon the amount of sales and the conditions prevailing during the licensing year. Sixthly, there are no express words showing that what is being realised from the petitioner is an excise duty. In fact what S.16 of the Mysore Excise Act says is that a privilege has been granted to him for selling by retail. Section 28 refers specifically to an amount due to the Government by any grantee of the privilege and the legislature apparently did not think that this amount would be covered by the expression all duties, taxes, fines and fees payable to the Government" occurring in S.28. Seventhly, the privilege of selling is auctioned well before the goods come into existence. In this case it would be noticed that the second notification, dated April 27, 1964, was for the sale during the next two yearsIn our opinion the answer is in the negative. The taxable event is not the manufacture or production of goods but the acceptance of the license to sell. In other words, the levy is in respect of the business of carrying on the sale of toddy. There is no connection of any part of the levy with any manufacture or production of any goods. To accept the contention of the State would mean expanding the definition of "excise duty" to include a levy which has close relation to the sale of excisable goods. It is now too late in the day to do soThe Legislative practice is not of any assistance because all duties collected under these Acts were not excise duties. We are not concerned here with the case of manufacture or the privilege of manufacture, and it is not necessary for us to decide whether Chief Justice Gwyer was right in so far as the auction of the privilege of manufacturing excisable article is concerned. But fit is interesting to note that even in Australia where a very wide meaning has been given to the word "excise", a fee for a mere licence to engage in business even if it be indirectly connected with production or manufacture has not been held to be an excise duty27. We may now deal with the propositions submitted by Mr. Gokhale. The first point taken by Mr. Gokhale is not sound. It is contrary to what has been consistently laid down by this Court: that it must be shown in every case that the duty has been levied on goods which have been produced or manufactured, the taxable event being production or manufacture of goods28. We also consider that his second proposition is not sound. There is no presumption that if no other taxable event has intervened, the levy must be treated to be connected with production or manufacture. This, as we have said above, must depend upon the facts of each case. But it must be positively shown that the taxable event for the duty which has been levied is manufacture or production of the article. We agree with his contention that the method of its collection is not decisive but, in our opinion in cases of doubt it may throw some light on this question29. Mr. Setalvad who appears in the appeals concerned with licenses for arrack points out that Para. 29 (a) of the General Conditions applicable to all excise and opium licenses specifically provides that the manufacturers of arrack and other country spirits as well as the licensees of arrack Bonded Depots are prohibited from holding any interest in the retail vend of arrack or in the vend of other country spirits and from employing any person who has such interest. He says that this strengthens his case because the money realised by the sale of licenses for vending arrack can have no relation to the manufacture or production of arrack. There is force in his contention31. In W. P. No. 1076 of 1964 and in some other petitions in the High Court the petitioners have challenged the validity of the Mysore Health Cess Act. 1951. This Act was not referred to in the course of arguments. Section .3 of the Health Cess Act. 19517 reads thus:"3. (1) There shall be levied and collected a health cess at the rate of six pies in the rupee on all items of land revenue and at such rate not exceeding one anna in the rupee as may be specified by Government by notification on all other items of revenue on which education cess is leviable(2) The Government may by notification levy health cess at such rate not exceeding one anna in the rupee as may be specified in the said notification on such other items of revenue as they deem fit."notification or notifications issued under S.3 were placed before us. We are, therefore, unable to say whether the levy of the Health Cess under the Act of 1951 stands on the same basis. Further no particulars are given in the petitions as to the dates of payments and no reason is given why the levy of Health Cess under the Act of 1951 was not challenged earlier. In the circumstances we decline to adjudge on the validity of the Health Cess Act, 1951, and the notifications issued under it. The petitioners will, however, be at liberty to file suits, if so advised, to recover the amounts alleged to have been paid by them under the Health Cess Act, 1951. | 1 | 8,159 | 2,023 | ### Instruction:
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, as do other provincial Acts, for lump sum payments in certain cases by manufacturers and retailers, which may be described as payments either for the privilege of selling alcohol, or as consideration for the temporary grant of a monopoly; but these are clearly not excise duties or anything like them. Provision was also made in most provincial Acts for the payment of licence fees in connection with the production or sale of alcohol in the Province; but these fees are mentioned in the Devolution Rules entry in addition to excise duties and are, therefore, something different from them." 25. Mr. Gokhale also relies on the legislative practice existing before the Government of India Act, 1935, came into force and his contention is that all the Acts existing before the Government of India Act, 1935, imposed excise duties and collected them by auctioning the privilege of sale or manufacture. The Legislative practice is not of any assistance because all duties collected under these Acts were not excise duties. We are not concerned here with the case of manufacture or the privilege of manufacture, and it is not necessary for us to decide whether Chief Justice Gwyer was right in so far as the auction of the privilege of manufacturing excisable article is concerned. But fit is interesting to note that even in Australia where a very wide meaning has been given to the word "excise", a fee for a mere licence to engage in business even if it be indirectly connected with production or manufacture has not been held to be an excise duty. The High Court of Australia held in Peterswald v. Bartley, 1 CLR 497 , that the State Act imposing a licence fee upon brewers as a condition precedent to the carrying on of their business and punishing non-compliance with its provisions was not opposed to S. 90 of the Australian Constitution. It may be that Chief Justice Gwyer had this case in mind when he made the observations reproduced above. Recently in Dennis Hotels Pvt. Ltd. v. Victoria, 33 ALJR 470, the High Court of Australia, by majority, held that S. 19 (1) (a) of the Licensing Act, 1958 (Vic.) which imposed fees for a Victuallers licence calculated at "equal to the sum of six per centum of the gross amount (including any duties thereon) paid or payable for all liquors which during the 12 months ended on the last day of June preceding the date of application for the grant or renewal of the licence was purchased for the premises was valid as it did not impose any excise duty within S. 90 of the Australian Constitution. 26. It is now necessary to consider the decision of this Court in 1962 Supp (2) SCR 741 (AIR 1962 SC 922 ), Disting. This decision is of course binding on us, but, in our opinion, this case is distinguishable. The question before the Court was whether Cochin Tobacco, Act, 1084 (Cochin Act VII of 1084 M.E.) and Travancore Tobacco Regulation, 1087 (Travancore 1 of 1087 M.E.) were laws corresponding to the Central Excise Act, and within Ss. 11 (1) and 13 (2) of the Finance Act, 1950. The Court was not concerned with the question whether the levies being made under these Acts were strictly excise duties within Item 51, List II and this is quite apparent from the fact that even though these Acts also imposed import duties, these were held in substance to be Acts corresponding to the Central Excise Act. Further the only system in force for the collection of tobacco revenue was to auction what was called A class and B class shops. There was no other duty levied on tobacco at all. As we have already said, it depends on the facts of each case whether in view of the scheme of the Act and the various provisions and the rules the revenue being obtained in an excise duty or not. It is true that Wanchoo, J.. referred to the practice of public auctions of the right to possess and sell excisable goods, but what he said was that the amount realised from these auctions was excise revenue, he did not say that the amount realized was excise duty as such in the strict sense of the term. 27. We may now deal with the propositions submitted by Mr. Gokhale. The first point taken by Mr. Gokhale is not sound. It is contrary to what has been consistently laid down by this Court: that it must be shown in every case that the duty has been levied on goods which have been produced or manufactured, the taxable event being production or manufacture of goods. 28. We also consider that his second proposition is not sound. There is no presumption that if no other taxable event has intervened, the levy must be treated to be connected with production or manufacture. This, as we have said above, must depend upon the facts of each case. But it must be positively shown that the taxable event for the duty which has been levied is manufacture or production of the article. We agree with his contention that the method of its collection is not decisive but, in our opinion in cases of doubt it may throw some light on this question. 29. Mr. Setalvad who appears in the appeals concerned with licenses for arrack points out that Para. 29 (a) of the General Conditions applicable to all excise and opium licenses specifically provides that the manufacturers of arrack and other country spirits as well as the licensees of arrack Bonded Depots are prohibited from holding any interest in the retail vend of arrack or in the vend of other country spirits and from employing any person who has such interest. He says that this strengthens his case because the money realised by the sale of licenses for vending arrack can have no relation to the manufacture or production of arrack. There is force in his contention.
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or manufacture of toddy is that it enables the licensee to sell it. But he may sell little, less or more than he anticipated, depending on various factors. Fourthly, toddy has already paid one excise duty in the form of tree-tax. If the petitioner taps toddy he pays tree tax, but he need not tap himself. Fifthly, the duty is not uniform in incidence because the amount collected has no relation to the quantity or quality of the product but has only relation to what the petitioner thought he could recoup by the sale of the excisable articles. What he recoups would depend upon the amount of sales and the conditions prevailing during the licensing year. Sixthly, there are no express words showing that what is being realised from the petitioner is an excise duty. In fact what S.16 of the Mysore Excise Act says is that a privilege has been granted to him for selling by retail. Section 28 refers specifically to an amount due to the Government by any grantee of the privilege and the legislature apparently did not think that this amount would be covered by the expression all duties, taxes, fines and fees payable to the Government" occurring in S.28. Seventhly, the privilege of selling is auctioned well before the goods come into existence. In this case it would be noticed that the second notification, dated April 27, 1964, was for the sale during the next two yearsIn our opinion the answer is in the negative. The taxable event is not the manufacture or production of goods but the acceptance of the license to sell. In other words, the levy is in respect of the business of carrying on the sale of toddy. There is no connection of any part of the levy with any manufacture or production of any goods. To accept the contention of the State would mean expanding the definition of "excise duty" to include a levy which has close relation to the sale of excisable goods. It is now too late in the day to do soThe Legislative practice is not of any assistance because all duties collected under these Acts were not excise duties. We are not concerned here with the case of manufacture or the privilege of manufacture, and it is not necessary for us to decide whether Chief Justice Gwyer was right in so far as the auction of the privilege of manufacturing excisable article is concerned. But fit is interesting to note that even in Australia where a very wide meaning has been given to the word "excise", a fee for a mere licence to engage in business even if it be indirectly connected with production or manufacture has not been held to be an excise duty27. We may now deal with the propositions submitted by Mr. Gokhale. The first point taken by Mr. Gokhale is not sound. It is contrary to what has been consistently laid down by this Court: that it must be shown in every case that the duty has been levied on goods which have been produced or manufactured, the taxable event being production or manufacture of goods28. We also consider that his second proposition is not sound. There is no presumption that if no other taxable event has intervened, the levy must be treated to be connected with production or manufacture. This, as we have said above, must depend upon the facts of each case. But it must be positively shown that the taxable event for the duty which has been levied is manufacture or production of the article. We agree with his contention that the method of its collection is not decisive but, in our opinion in cases of doubt it may throw some light on this question29. Mr. Setalvad who appears in the appeals concerned with licenses for arrack points out that Para. 29 (a) of the General Conditions applicable to all excise and opium licenses specifically provides that the manufacturers of arrack and other country spirits as well as the licensees of arrack Bonded Depots are prohibited from holding any interest in the retail vend of arrack or in the vend of other country spirits and from employing any person who has such interest. He says that this strengthens his case because the money realised by the sale of licenses for vending arrack can have no relation to the manufacture or production of arrack. There is force in his contention31. In W. P. No. 1076 of 1964 and in some other petitions in the High Court the petitioners have challenged the validity of the Mysore Health Cess Act. 1951. This Act was not referred to in the course of arguments. Section .3 of the Health Cess Act. 19517 reads thus:"3. (1) There shall be levied and collected a health cess at the rate of six pies in the rupee on all items of land revenue and at such rate not exceeding one anna in the rupee as may be specified by Government by notification on all other items of revenue on which education cess is leviable(2) The Government may by notification levy health cess at such rate not exceeding one anna in the rupee as may be specified in the said notification on such other items of revenue as they deem fit."notification or notifications issued under S.3 were placed before us. We are, therefore, unable to say whether the levy of the Health Cess under the Act of 1951 stands on the same basis. Further no particulars are given in the petitions as to the dates of payments and no reason is given why the levy of Health Cess under the Act of 1951 was not challenged earlier. In the circumstances we decline to adjudge on the validity of the Health Cess Act, 1951, and the notifications issued under it. The petitioners will, however, be at liberty to file suits, if so advised, to recover the amounts alleged to have been paid by them under the Health Cess Act, 1951.
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Indian Rare Earths Ltd. & Another Vs. Pramod Chandra Panigraphi & Others | 1. This appeal is against the judgment of the Orissa High Court dated 18th November, 1998. Briefly stated the facts are as follows: Respondent Nos. 1 and 2 were working in the petitioner company. In 1993 they received promotions and the pay-scale now given to them was Rs. 625-45-850-50-1600. They filed a writ petition in the High Court claiming that this scale was a non-existing scale and that the next scale for promotion for them was the scale starting at Rs. 900/-. They claimed that other workmen had been promoted to the scale of Rs. 900/- and, therefore, they were also entitled to the same scale.2. It appears that the arguments in the writ petition were over by 24th November, 1997. However, judgment was delivered only on 18th November, 1998. The High Court has allowed the writ petition and directed that the respondents be fitted into the scale of pay starting at Rs. 710-1335/-. Hence this appeal. 3. It has been pointed out to us that the conclusion of the High Court that there was no existing pay-scale of Rs. 625/- is not correct. A settlement dated 9th August, 1986 between the representative union and the appellants is shown to us. In that settlement there is a scale starting at Rs. 625/-. Thereafter there is another settlement arrived at on 8th August, 1990, by this a promotional policy was introduced with effect from 1st July, 1988. A third settlement was arrived at on 25th September, 1992. In this settlement the scale starting at Rs. 625/- was revised to Rs. 1,460/-. Thus, it is clear that in 1993, when the petitioners filed the writ petition there was an existing scale of Rs. 625/-. 4. Whilst the petition was pending, a settlement was arrived at on 12th January, 1994 wherein the scale of Rs. 1,460/- (which is the revised scale of Rs. 625/-) is categorically recognized. The respondents have in para 2 of their rejoinder, filed in the High Court, admitted that such a scale is shown in the settlement dated 12th January, 1994. They, however, contend that this settlement having been arrived at after their promotion in 1993 is not binding on them. It must also be mentioned that at one stage they had also contended that the Union may, disregarding their interest arrive at settlement which would be detrimental to them. But that contention was subsequently given up and not pressed in the writ petition.5. As during the pendency of the writ petition the settlement dated 12th January, 1994 was arrived the settlement would be binding on the respondents. The respondents were now only entitled to the scale starting at Rs. 625/- as that was the next promotional scale. It is settled law that a settlement, admittedly arrived at in conciliation proceedings, is binding on all. This is clear from Section 18 of the Industrial Disputes Act. It has also been so held by this Court in the cases of The Sirsilk Ltd. and Ors. v. Government of Andhra Pradesh and Anr., reported in (1964) 2 SCR 448 ; K.C.P. Limited v. Presiding Officer and Ors., reported in (1996) 10 SCC 446 ; and National Engineering Industries Ltd. v. State of Rajasthan and Ors., reported in X (1999) SLT 340=(2000) 1 SCC 371. 6. Unfortunately, the High Court has not referred to the settlement or dealt with it at all. In view of the settlement, the respondents were not entitled to the reliefs as claimed by them. The High Court has clearly erred in granting them a scale of Rs. 710/-. | 1[ds]4. Whilst the petition was pending, a settlement was arrived at on 12th January, 1994 wherein the scale of Rs. 1,460/(which is the revised scaleis categorically recognized. The respondents have in para 2 of their rejoinder, filed in the High Court, admitted that such a scale is shown in the settlement dated 12th January, 1994. They, however, contend that this settlement having been arrived at after their promotion in 1993 is not binding on them. It must also be mentioned that at one stage they had also contended that the Union may, disregarding their interest arrive at settlement which would be detrimental to them. But that contention was subsequently given up and not pressed in the writ petition.5. As during the pendency of the writ petition the settlement dated 12th January, 1994 was arrived the settlement would be binding on the respondents. The respondents were now only entitled to the scale starting at Rs. 625/as that was the next promotional scale. It is settled law that a settlement, admittedly arrived at in conciliation proceedings, is binding on all. This is clear from Section 18 of the Industrial Disputes Act. It has also been so held by this Court in the cases of The Sirsilk Ltd. and Ors. v. Government of Andhra Pradesh and Anr., reported in (1964) 2 SCR 448 ; K.C.P. Limited v. Presiding Officer and Ors., reported in (1996) 10 SCC 446 ; and National Engineering Industries Ltd. v. State of Rajasthan and Ors., reported in X (1999) SLT 340=(2000) 1 SCC 371. 6. Unfortunately, the High Court has not referred to the settlement or dealt with it atview of the settlement, the respondents were not entitled to the reliefs as claimed by them. The High Court has clearly erred in granting them a scale of Rs. | 1 | 681 | 348 | ### Instruction:
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1. This appeal is against the judgment of the Orissa High Court dated 18th November, 1998. Briefly stated the facts are as follows: Respondent Nos. 1 and 2 were working in the petitioner company. In 1993 they received promotions and the pay-scale now given to them was Rs. 625-45-850-50-1600. They filed a writ petition in the High Court claiming that this scale was a non-existing scale and that the next scale for promotion for them was the scale starting at Rs. 900/-. They claimed that other workmen had been promoted to the scale of Rs. 900/- and, therefore, they were also entitled to the same scale.2. It appears that the arguments in the writ petition were over by 24th November, 1997. However, judgment was delivered only on 18th November, 1998. The High Court has allowed the writ petition and directed that the respondents be fitted into the scale of pay starting at Rs. 710-1335/-. Hence this appeal. 3. It has been pointed out to us that the conclusion of the High Court that there was no existing pay-scale of Rs. 625/- is not correct. A settlement dated 9th August, 1986 between the representative union and the appellants is shown to us. In that settlement there is a scale starting at Rs. 625/-. Thereafter there is another settlement arrived at on 8th August, 1990, by this a promotional policy was introduced with effect from 1st July, 1988. A third settlement was arrived at on 25th September, 1992. In this settlement the scale starting at Rs. 625/- was revised to Rs. 1,460/-. Thus, it is clear that in 1993, when the petitioners filed the writ petition there was an existing scale of Rs. 625/-. 4. Whilst the petition was pending, a settlement was arrived at on 12th January, 1994 wherein the scale of Rs. 1,460/- (which is the revised scale of Rs. 625/-) is categorically recognized. The respondents have in para 2 of their rejoinder, filed in the High Court, admitted that such a scale is shown in the settlement dated 12th January, 1994. They, however, contend that this settlement having been arrived at after their promotion in 1993 is not binding on them. It must also be mentioned that at one stage they had also contended that the Union may, disregarding their interest arrive at settlement which would be detrimental to them. But that contention was subsequently given up and not pressed in the writ petition.5. As during the pendency of the writ petition the settlement dated 12th January, 1994 was arrived the settlement would be binding on the respondents. The respondents were now only entitled to the scale starting at Rs. 625/- as that was the next promotional scale. It is settled law that a settlement, admittedly arrived at in conciliation proceedings, is binding on all. This is clear from Section 18 of the Industrial Disputes Act. It has also been so held by this Court in the cases of The Sirsilk Ltd. and Ors. v. Government of Andhra Pradesh and Anr., reported in (1964) 2 SCR 448 ; K.C.P. Limited v. Presiding Officer and Ors., reported in (1996) 10 SCC 446 ; and National Engineering Industries Ltd. v. State of Rajasthan and Ors., reported in X (1999) SLT 340=(2000) 1 SCC 371. 6. Unfortunately, the High Court has not referred to the settlement or dealt with it at all. In view of the settlement, the respondents were not entitled to the reliefs as claimed by them. The High Court has clearly erred in granting them a scale of Rs. 710/-.
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4. Whilst the petition was pending, a settlement was arrived at on 12th January, 1994 wherein the scale of Rs. 1,460/(which is the revised scaleis categorically recognized. The respondents have in para 2 of their rejoinder, filed in the High Court, admitted that such a scale is shown in the settlement dated 12th January, 1994. They, however, contend that this settlement having been arrived at after their promotion in 1993 is not binding on them. It must also be mentioned that at one stage they had also contended that the Union may, disregarding their interest arrive at settlement which would be detrimental to them. But that contention was subsequently given up and not pressed in the writ petition.5. As during the pendency of the writ petition the settlement dated 12th January, 1994 was arrived the settlement would be binding on the respondents. The respondents were now only entitled to the scale starting at Rs. 625/as that was the next promotional scale. It is settled law that a settlement, admittedly arrived at in conciliation proceedings, is binding on all. This is clear from Section 18 of the Industrial Disputes Act. It has also been so held by this Court in the cases of The Sirsilk Ltd. and Ors. v. Government of Andhra Pradesh and Anr., reported in (1964) 2 SCR 448 ; K.C.P. Limited v. Presiding Officer and Ors., reported in (1996) 10 SCC 446 ; and National Engineering Industries Ltd. v. State of Rajasthan and Ors., reported in X (1999) SLT 340=(2000) 1 SCC 371. 6. Unfortunately, the High Court has not referred to the settlement or dealt with it atview of the settlement, the respondents were not entitled to the reliefs as claimed by them. The High Court has clearly erred in granting them a scale of Rs.
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Maharana Shri Jayavantsinhji Ranmalsinhji & Others Vs. State of Gujarat & Others | must be held that it does not impose a reasonable restriction. We have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant. 14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the Constitution. On behalf of the respondent State reliance was sought to be placed on Art. 31A of the Constitution. That Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 1958. 15. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants. | 1[ds]In view of the argument advanced before us on behalf of the respondents that the impugned Act, 1958 merely changes a rule of evidence, it is worthly of note that the long title itself states that the Act is an Act further to define permanent tenants. Section 2 of the Act is the interpretation section and the expression Land Tenure Abolition law means in relation to a permanent tenant, Acts specified in Part I of the Schedule. The Taluqdari Abolition Act, 1949 is one of the Acts mentioned in Part I of the Schedule. The expression tenure- holder means inter alia a taluqdar and tenure- land means inter alia taluqdari landIt is clear that if the impugned Act merely changes a rule of evidence for determining who are permanent tenants in possession of taluqdari lands, then the points urged as to the violation of the petitioners fundamental rights under Arts. 14, 19 (l) (f) and 31 would not at all arise. If, on the contrary, it is found that the impugned Act is not a piece of legislation which changes a rule of evidence but is a device by which the petitioners have been deprived of their property without payment of compensation, then it would be a piece of colourable legislation not within the competence of the State Legislature. The legislation would then fall on the main ground that it is a piece of colourable legislation, the subject matter of which is not covered by any entry in List II or List IIISection 3 of the impugned Act, 1958 states, however, that a person shall be deemed to be a permanent tenant on the date of the abolition of the relevant land tenure if his name has been recorded in the record of rights in respect of any tenure land in any of the three circumstances mentioned as (a), (b) and (c) therein. In other words, if any one of the three circumstances mentioned in the section exists, then by a fiction of law a person who fulfils that circumstance must be deemed to be a permanent tenant. Section 4 says in effect that a tenant(a) who on the date of the commencement of the Taluqdari Abolition Act, 1949 was holding any tenure land, and (b) who and whose predecessors in title, if any, were immediately before that date for such continuous periods as aggregate to a total continuous period of 12 years or more, holding the same tenure land, or any other tenure land shall unless it is proved by the tenure- holder that he would not have been a permanent tenant on the basis of continued possession of the land under (b) above, be deemed to be a permanent tenant of the land under (a), and all the provisions of the Taluqdari Abolition Act, 1949 shall apply to him as they apply to a permanent tenant. There is a third condition mentioned in s. 4, namely, the amount which the tenant pays must exceed the assessment of the land. This condition does not, however have any importance in the discussion which follows and no further reference to it is necessary. There is no difficulty in understanding cl. (a) of s. 4 but cl. (b) is not so clear. The expression "continuous periods as aggregate to a total continuous period of twelve years or more" is neither very elegant nor very clear. Perhaps, the expression means that one particular continuous period may be of less than twelve years but there may be more than one such continuous period and in such a case the totality of such continuous periods must aggregate twelve years or more; if however, one continuous period extends over twelve years or more, there is no difficulty, and the question of the aggregate totalling twelve years does not arise. The question of the aggregate totalling twelve years will arise when there are more continuous periods than one, of less than twelve years duration each. The possessions for such continuous periods may be of the same tenure-land or of different tenure-lands.If however, the aggregate of continuous periods of possession of the same tenure-land or of any other tenure-land comes to twelve years or more, then cl. (b) of s. 4 is fulfilled. It further appears that conditions mentioned in (a) and (b) are cumulative. In other words, for the application of s.4, a tenant must be in possession of tenure-land on the date of the commencement of the Taluqdari Abolition Act, 1949 (August 15, 1950) and further more must have been in possession of the same tenure-land or of any other tenure-land for continuous periods aggregating more than twelve years immediately before the said date. A person who fulfils the aforesaid two conditions shall be deemed to be a permanent tenant of the land unless it is proved by the tenure-holder that he would not have been a permanent tenants of the basis of possession referred to in cl.(b). The expression "unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued possession of the land under clause (b)" has again given rise to some difficulty. Two views have been can- vassed before us. One view is that the expression means that the tenure-holder can only contest the correctness of the claim of twelve years possession and show that the tenant was not in possession of the land or lands concerned or that the continuous period or periods of possession did not aggregate twelve years. The other view is that the tenure-holder can show that the tenancy commenced on a particular date or that there is satisfactory evidence of the duration of the tenancy, and therefore, under s. 83 of the Revenue Code the tenant would not be a permanent tenant merely by reason of twelve years possession12. Section 4 as worded is somewhat obscure and if one were to go merely by the words used, one would be inclined to accept the first view. On that view, the Section undoubtedly would go much further than merely introducing a rule of evidence; it would create a new class of permanent tenants not contemplated by s. 83 of the Revenue Code. The latter section talks of two circumstances which determine the status of a tenant: one relates to commencement of the tenancy and the other to its intended duration. Under s. 83 the onus will be on the person who claim a permanent status as a tenant to prove that either the commencement of the tenancy is not known or that its intended duration was not agreed upon between the landlord and tenant or was not governed by any usage of the locality. Section 4 of the impugned Act, 1958 gives a go-by to these circumstances. It brings in different considerations altogether. In effect it says that if a person was in possession of any tenure-land on August 15, 1950 (the date of commencement of the Taluqdari Abolition Act, 1949) and was further more in possession of the same tenure-land or any other tenure-land for a continuous aggregate period of twelve years, he would be deemed to be a permanent tenant, unless the tenure-holder proved that he was not in possession for a continuous aggregate period of twelve years as laid down in cl. (b) of the section. This means that instead of the two circumstances relating to commencement and duration a new consideration is brought in, namely, whether the tenant has been in possession for a continuous, aggregate period of twelve years. If he has been, then he is a permanent tenant. If he has not been in such possession, then he is not a permanent tenants. In other words, s. 4 of the impugned Act, 1958, completely changes the definition of a permanent tenant and creates a new class of permanent tenants who were not permanent tenants on April 1, 1957. If this view is correct, and we think that there is a good deal to be said in favour of this view, then s. 4 of the impugned Act, 1958 in spite of giving the tenure-holder an opportunity of proving that the tenant was not in possession for an aggregate continuous period of twelve years under s. 4 read with s. 6, undoubtedly changes the very definition of permanent tenant and by that change wipes out a large part of the purchase price which the petitioners were entitled to get on April 1, 1957 from some of their tenants. It is not disputed that on this view of s. 4, the impugned legislation would be unconstitutional inasmuch as it would bring within the category of permanent tenants persons who were non-permanent tenants under the previous law and there by deprive the tenure-holders of part of the purchase money which they were to get from them.It has been contended that the second view with regard to the expression "unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued possession of the land under clause (b)" is preferable on the ground that cl. (b) is one of the conditions which the tenant must fulfil before he can get the benefit of s. 4 and there would not be much sense in allowing the tenure-holder to disprove a condition which the tenant must fulfil before he can get the benefit of s. 4. We find it difficult to accept this view. On a pure question of construction of the words used in s. 4, we see nothing wrong in allowing the tenure-holder to prove that the tenant was not in possession for continuous periods aggregating twelve yearsFrom this point of view it may be argued that s. 4 merely changes a rule of evidence and throws the onus on the tenure-holder to prove that in spite of twelve years continuous possession mentioned in cl. (b), the tenant is not a permanent tenant by reason of the circumstance that the commencement of the tenancy or its intended duration is known. Under s. 6 the rights of a permanent tenant under s. 4 shall be entered in the record of rights unless the tenure-holder applies in writing to the Mamlatdar within six months from the date of the commencement of the impugned Act, 1958, for the declaration that the tenant under him is not a permanent tenant. If any such application is filed by the tenure-holder, it shall be disposed of as if it were an application in respect of a disputed case under s. 135D of the Revenue Code. What is the effect of s. 6 ? It was conceded by the learned counsel appearing for the respondent State and also the respondent tenants that the tenure- holder has only one opportunity of saying that a tenant under him is not a permanent tenant and the tenure-holder must avail himself of that opportunity within six months from June 10, 1958, the date on which the impugned Act, 1858, came into force. The combined effect of ss. 3, 4 and 6 appears to us to be this. If the tenure-holder has made no application within six months from June 10, 1958, for a declaration that a tenant under him is not a permanent tenant, every tenant under him who fulfils the conditions mentioned in cls. (a) and (b) of s. 4 at once gets recorded in the record of rights as a permanent tenant. As soon as he is so recorded, he must be deemed under s. 3 to be a permanent tenant by a fiction of law and under s. 4 all the provisions of the Taluqdari Abolition Act, 1949, will apply to him as they apply to a permanent tenant. This combined effect of ss. 3, 4 and 6 of the impugned Act, 1958 does in our opinion deprive the tenure-holder of any real opportunity of contesting the claims of his tenants and makes them permanent tenants once they are recorded in the record of rights, thereby depriving the tenure-holder of the purchase price which he was entitled to get from them under s. 32H of the Tenancy Act, 1948If the petitioner had filed no application for a declaration within the meaning of s. 6 of the impugned Act, 1958, and within the time allowed by that section, then it is obvious that the Revenue Officer dealing with the suits under s. 70(b) of the Tenancy Act, 1948, pending before him, or the Revenue Officer dealing with other proceedings before him, must give effect to the provisions of ss. 3, 4 and 6 of the impugned Act, 1958. It is, therefore difficult to see how the pendency of the suits or other proceedings before the Revenue Officers concerned can be of any assistance to the petitioners. The question, therefore, boils down to this. Section 6 of the impugned Act, 1958 does give one opportunity to the petitioners to make an application for a declaration that any tenant under him is not a permanent tenant, but that opportunity was to be availed of within six months from June 10, 1958. Once that opportunity is lost, the tenure-holder cannot claim that a tenant who fulfils cls. (a) and (b) of s. 4 is not a permanent tenant. Our attention was drawn to sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. Those sub-sections say in effect that if any question arises whether any person is a permanent tenant, the State Government or an officer authorised by the State Government in that behalf shall decide the question; where such officer decides such question any person aggrieved by the decision may file an appeal to the State Government within 60 days from the date of the decision; and the decision of the State Government shall be final. It was not suggested before us that the aforesaid sub-sections would give the tenure-holder a second opportunity of contesting the claim of the tenant, and it seems to us quite clear that the tenure- holder who had failed to make an application within the time mentioned in s. 6 of the impugned Act, 1958, would not be in a position to take advantage of sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. If ss. 3, 4 and 6 of the impugned Act, 1958, are good and valid in law, then whichever be the authority that has to decide the claim of the tenant, it must decide it in accordance with those provisions.We think that this question must be answered in the negative.It is to be noted that on April 1, 1957 the petitioners ceased to be tenure-holders of the lands held by non-permanent tenants and as held by this Court, ss. 32 to 32R of the Tenancy Act, 1948, clearly contemplated the vesting of the title in the tenants on the tillers day, defeasible only on certain specified contingencies. This Court held that those sections were designed to bring about an extinguishment, or in any event a modification of the landlords rights in the estate within the meaning of Art. 31A (1) (a) of the Constitution. If that was the true effect of ss. 32 to 32R of the Tenancy Act, 1948, then on April 1, 1957 the petitioners were left only with the right to get the purchase price under s. 32H. That right of the petitioners was undoubtedly a right to propertyWe have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the ConstitutionThat Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 195815. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants. | 1 | 9,504 | 3,926 | ### Instruction:
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must be held that it does not impose a reasonable restriction. We have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant. 14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the Constitution. On behalf of the respondent State reliance was sought to be placed on Art. 31A of the Constitution. That Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 1958. 15. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants.
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1948, then on April 1, 1957 the petitioners were left only with the right to get the purchase price under s. 32H. That right of the petitioners was undoubtedly a right to propertyWe have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the ConstitutionThat Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 195815. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants.
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Force Motors Limited (Formerly Known As Bajaj Tempo) Limited & Another Vs. Poona Employees Union, Through Its President Mr.Madhav Roham & Others | not signed by any of the office bearers and moreover, said registers were not in prescribed proforma i.e. in Form J as prescribed under the Act. Such documentary evidence of cash book and membership registers without bearing the signature of any of the office bearers of the Union and without maintaining those in prescribed proforma, it can be easily said that such documents are not authentic and authorized and cannot be relied upon. I would like to point out from oral evidence of responsible office bearer of B.K.S. i.e. Vice President of B.K.S. namely, Deoram Bhosale that inspite of holding responsible post of B.K.S. he has not yet read the constitution of B.K.S. We do not find from the impugned order that the onus was discharged by respondent No.1 to prove that it was, at the relevant point of time, representing majority of the members. In paragraph 25 of the said judgment, the Industrial Court dealt with the affidavits and noted the arguments and counter arguments. The learned trial Judge was of the view that though these affidavits could not be taken as proof of membership but these affidavits could be taken to be the proof of the Deponents declaration that he had relinquished his membership from B.K.S. Thus in effect was an attempt to rely on these affidavits for proving the membership of respondent No.1 union. The court said, So, affidavits of 1556 employees of the Company filed on behalf of Applicant Union, can be accepted to substantiate the point that they brought an end to their relationship with B.K.S. and had not paid the membership fees to B.K.S. after December, 2002. Intention of as many as 1556 employees is very clear from their affidavits that they disconnected their tie as members with B.K.S. and come forward to file their respective affidavits of and on behalf of applicant union in this matter for getting the status of recognized union. This was not only against the rules of natural justice, as also about the established law, but against the order passed by the Industrial Court itself earlier. Even if these affidavits could have been taken into consideration, none of the affiants, except 100 affiants for which cross-examination was allowed, could have been taken into consideration. But admittedly the membership cannot be proved on the basis of the affidavits as it is the settled law and we will refer to the judgment in this connection shortly. The conclusion drawn by the learned Judge was, So, after comparing the entire evidence adduced by both unions on the point of strength of their membership read together with report of Investigating Officer as well, 1556 affidavits of the employees filed on record by Applicant Union, I am of the opinion that the Applicant Union was having more than 30% of membership of the total employees of the Company as well as larger membership than the membership of B.K.S. during the period of six months from the month of March, 2003 till August, 2003. So the affidavits filed by 1556 workers plays a decisive role in making the Court to reach the conclusion that the applicant Union represented more than 1556 of the total number of the workers of the undertaking. Therefore, on this ground the petitions are required to be allowed. 12. Whether the said affidavits can be taken into consideration or not, is according to the learned Counsel for the petitioner, concluded by the judgment of the Supreme Court in the case of Automobile Products of India Employees Union v/s Association of Engineering Workers, Bombay and others, reported in (1990 F.L.R. Vol.61 page 369). This was a case where the Industrial Court tried to find out as to who was representing majority of the members by adopting a method of secret ballot with the consent of contesting parties. This was also not approved by the Supreme Court. The Supreme Court dealt with the scheme of the Act and observed as under: "The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognized one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognized union. In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers, who voted, were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership being ignored. The consent of the parties to follow a procedure, which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the Legislature did not opt for the ballot as a method for determining the representative character of the union and laid down as elaborate procedure with necessary safeguards to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. Following this Judgment of the Supreme Court, the impugned order of the Industrial Court cannot be sustained. 13. Coming to the third ground, which challenges the order of the Tribunal on the ground that respondent No.1 union had not complied with the requirement under Section 19(4) of the MRTU & PULP Act, we feel that since we are allowing the writ petition on other two grounds, it may not be necessary to go into that question. | 1[ds]These provisions enable the Industrial Court to replace a recognized union by another union and if a union is recognized under Section 11, another union at its place can be recognized under Section 14 of the MRTUPULP Act. The only requirement of the Section is that the new union should have larger membership of the employees employed in such an undertaking. Such application can be made only after two years of the recognition of the first union. Under subsection (3) of Section 14, the Industrial Court is empowered to hold an inquiry, as it deems fit, which may include also the recording of evidence of the witnesses and hearing of the parties and after holding inquiry if the court is satisfied that the union satisfies the conditions necessary for recognition specified in Section 11 the court shall recognize the union applying in place; of the recognized union. Therefore, the requirements of section 14 for recognition are necessary to be fulfilled before an application under Section 14 is allowed. This question was considered by this Court in Indian Express Newspapers (BOM) Employees Unionfind ourselves in agreement with the law laid down in the above referred cases by the two Division Benches of this Court. Since respondent No.1 Union had not mentioned any purpose for which the Union was being established in their constitution, they could not have been recognized under Section 11 of the MRTUPULP Act and there was no question, therefore, of an application under Section 14 of the MRTUPULP Act being entertained.Coming to the second ground, that the learned Judge of the Industrial Court accepted affidavits and decided issue on the basis of an inquiry conducted through the Investigation Officer, it is contended by the learned Counsel that the Industrial Court has not only violated the law but relying on the affidavits without rebuttal as no chance of rebuttal was given is even against the rules of natural justice. In order to appreciate this argument, certain orders of the Tribunal need to be examined. On 29th September, 2004, when affidavits were sought to be filed by respondent No.1 union, respondent No.2 union made an application praying that Investigation Officer be appointed and affidavits be not entertained. The Court, however, on the question of filing of affidavits noted, Moreover, the learned Advocate for the applicant union has made it clear that for proving the membership, the affidavits of the employees would not be filed, but for some other relevant purpose, the affidavits may be filed. In such circumstances, I am of the opinion that the present application, vide Exh. NAU14 is premature and filed on hypothetical basis that the affidavits would be filed to prove the membership of the Union. So such an application cannot be allowed. Therefore, it is contended by the learned Counsel that the Tribunal allowed those affidavits to be filed but not for the purpose of proving the membership. But ultimately he relied on these affidavits for proving the membership of the union. This order was also challenged by way of writ petition being Writ Petition No. 9502 of 2004 but the writ petition was dismissed. The petitioner was granted liberty to agitate this issue also in case the final order went against him. Again on 29th November, 2004 by an order, the Industrial Court allowed taking on record 1556 affidavits. This application was made by respondent No.1. After discussing the application and objections to it by the petitioner and referring to its earlier order, the Industrial Court passed the followingfor production of the affidavits is allowed with condition that these affidavits would not be used for proving the point of membership of the applicant Union and may be used for other ancillary or relevant aspect. At the same time, theare at liberty to file counter affidavits or to adduce rebuttal evidence in respect of alleged ancillary or relevant aspect which emerged from the affidavits in thisIndustrial Court allowed filing of affidavits with liberty to the other aside to file counter affidavits or adduce rebuttal evidence. It also allowed theof the persons who filed the said affidavits. By an order of 30th April, 2005, the Industrial Court rejected the application of the petitioner tothe persons who had filed affidavits and the reasons given in the order are very interesting, namely, All the affidavits are similar and identical. In such circumstances, opportunity to100 affiants, as given to theis quite sufficient and just. It is not equitable and probable to direct all 1556 affiants to face theIt will take years together to decide the matter. In fact, theare also at liberty to file counter affidavits. Since the original petition is made time bound andunion is restrained from signing the settlement with the company till decision of this main petition, I am of the opinion that the prayer ofunion to call remaining affiants forcannot be granted. If, a person gives an affidavit that he belongs to a particular union, what type of a counter affidavit can be given. The only mode to rebut such an affidavit or to demolish the assertion made in such an affidavit, which appeals to the commons sense, is theof such person. On the one hand the Court allowed 1556 affidavits to be taken on record. On the other hand, the Court confinedonly against 99 persons and, therefore, on the basis of these affidavits if any conclusions were drawn about the membership of respective union would be clearly faulty and unfair.Therefore, let us now examine as to how far the court has relied on these affidavits to come to the conclusion that respondent No.1 was representing the majority of the workers as on the crucial date. Although in its earlier orders the Industrial Court had said that the affidavits would be only for the ancillary purposes and not for coming to a conclusion with regard to the strength of membership of respective union, but the learned Counsel submits that, this was the sole evidence the Industrial Court relied upon to come to a conclusion that respondent No.1 was the union representing majority of the members.Before going to the findings, it will also be profitable to note some relevant findings of the Investigation Officer. About applicant union, i.e. respondent No.1, it is stated that they claimed that 1973 workers were there members. Out of the list, the names of 12 members were shown twice in the report. 26 workers in the list of Union were not at all employees of the company. One more worker was also not found in the list. Therefore, the Investigation Officer deleted 39 workers as not eligible members. As such the claim got reduced to 1934 from 1973. In the receipt with regard to the payment of the Unions contribution, no dates were found by the Investigation Officer on many of the receipts. About the recognized union i.e. one of the petitioner who claimed that they had membership of 2166 members, it was found that 41 workers were not seen in the list. Therefore, they were deleted and the claim was as such reduced to 2125 from 2166. From January, 2003 to December, 2003, 2166 members were shown as registered in their books but no responsible officer of the union had signed on the record book. The said recording was not maintained as per the provisions of the Act. The annual fee of the union was Rs.60/. The receipts showing collection from 2166 members were submitted. The contribution of workers were reflected in cash book, but the cash book was not maintained in the prescribed specimen and responsible officer of the union had not signed the cash book. 54 workers had retired/resigned and some of them had even expired. Thereafter the Investigation Officer proceeded to verification of members. He found that both the Unions gave the list of eligible members, which was compared with the list of the workers of the company. Out of 1934 eligible members, there were only 26 members exclusively with respondent No.1 union. 1908 members, who were shown to be members by respondent No.1 union were also members of the other union i.e. recognized union. So the Investigation Officer came to the conclusion that 1908 members had a dual membership. They were members of both the unions and ultimately he found that the recognized union had 217 members which was the exclusive membership of that union and only 26 persons were exclusive member of respondent No.1 union which claimed recognition.In the impugned Judgment and Order, the learned Industrial Court had framed Issues. Issue Nos.1 and 2 are important for the present question, which read asWhether the applicant Union proves that it has membership of not less than 30% of the total number of the employees, employed in the undertaking for the whole of the period of six months, immediately preceding the calendar month, in which it soWhether the membership of Applicant Union was larger than that of the membership of theNo.2 (Recognized Union), during the whole of the period of six months, prior to the filing of thethese Issues were decided in favour of respondent No.1 Union. We have found that basically the approach of the Industrial Court in proceeding with the controversy was defective. Respondent No.2 UnionBKS was recognized union. It had not to prove any case. The onus was on respondent No.1 union to prove that BKS had lost its representative character within the meaning of Section 11 of the MRTUPULP Act and they were eligible to be recognized under Section 11 of the Act. This approach can be seen from the observations made by the Industrial Court in paragraph 21 of the impugned Judgment. The relevant observations are asthis juncture, alone, I would like to point out that the entire record of B.K.S. pertaining to membership fees as produced before Investigating Officer, is suspicious. I will point out the remarks of Investigating Officer as given on Page 8 of the report. Investigating Officer has remarked that whatever membership fees collected on 7th February, 2003 was shown as received two days earlier i.e. on 5.2.2003 in the cash book. Similarly, whatever membership fees collected on 10th February 2003 is shown as collected two days prior i.e. on 8.2.2003 in cash book. It is very surprised to see that on 5th February 2003 and 8th February 2003 the amounts shown as collected towards membership fees by B.K.S. were not at all collected on those respective days. So, both entries in cash book pertaining to collection of membership fees in cash book, are false and incorrect. Investigating Officer has specifically pointed out on page 8 of his report that cash book maintained by B.K.S. is not in prescribed proforma and it is not signed by any of the office bearers of B.K.S. Moreover, Investigating Officer has also reported on page 5 of his report that membership registers of B.K.S. for the relevant period were not signed by any of the office bearers and moreover, said registers were not in prescribed proforma i.e. in Form J as prescribed under the Act. Such documentary evidence of cash book and membership registers without bearing the signature of any of the office bearers of the Union and without maintaining those in prescribed proforma, it can be easily said that such documents are not authentic and authorized and cannot be relied upon. I would like to point out from oral evidence of responsible office bearer of B.K.S. i.e. Vice President of B.K.S. namely, Deoram Bhosale that inspite of holding responsible post of B.K.S. he has not yet read the constitution ofdo not find from the impugned order that the onus was discharged by respondent No.1 to prove that it was, at the relevant point of time, representing majority of the members. In paragraph 25 of the said judgment, the Industrial Court dealt with the affidavits and noted the arguments and counter arguments. The learned trial Judge was of the view that though these affidavits could not be taken as proof of membership but these affidavits could be taken to be the proof of the Deponents declaration that he had relinquished his membership from B.K.S. Thus in effect was an attempt to rely on these affidavits for proving the membership of respondent No.1 union. The court said, So, affidavits of 1556 employees of the Company filed on behalf of Applicant Union, can be accepted to substantiate the point that they brought an end to their relationship with B.K.S. and had not paid the membership fees to B.K.S. after December, 2002. Intention of as many as 1556 employees is very clear from their affidavits that they disconnected their tie as members with B.K.S. and come forward to file their respective affidavits of and on behalf of applicant union in this matter for getting the status of recognized union. This was not only against the rules of natural justice, as also about the established law, but against the order passed by the Industrial Court itself earlier. Even if these affidavits could have been taken into consideration, none of the affiants, except 100 affiants for whichwas allowed, could have been taken into consideration. But admittedly the membership cannot be proved on the basis of the affidavits as it is the settled law and we will refer to the judgment in this connection shortly. The conclusion drawn by the learned Judge was, So, after comparing the entire evidence adduced by both unions on the point of strength of their membership read together with report of Investigating Officer as well, 1556 affidavits of the employees filed on record by Applicant Union, I am of the opinion that the Applicant Union was having more than 30% of membership of the total employees of the Company as well as larger membership than the membership of B.K.S. during the period of six months from the month of March, 2003 till August, 2003. So the affidavits filed by 1556 workers plays a decisive role in making the Court to reach the conclusion that the applicant Union represented more than 1556 of the total number of the workers of the undertaking. Therefore, on this ground the petitions are required to be allowed.Whether the said affidavits can be taken into consideration or not, is according to the learned Counsel for the petitioner, concluded by the judgment of the Supreme Court in the case of Automobile Products of India Employees Union v/s Association of Engineering Workers, Bombay and others, reported in (1990 F.L.R. Vol.61 page 369). This was a case where the Industrial Court tried to find out as to who was representing majority of the members by adopting a method of secret ballot with the consent of contesting parties. This was also not approved by the Supreme Court. The Supreme Court dealt with the scheme of the Act and observed asfacts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognized one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognized union. In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers, who voted, were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership beingconsent of the parties to follow a procedure, which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the Legislature did not opt for the ballot as a method for determining the representative character of the union and laid down as elaborate procedure with necessary safeguards to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of thethis Judgment of the Supreme Court, the impugned order of the Industrial Court cannot be sustained.Coming to the third ground, which challenges the order of the Tribunal on the ground that respondent No.1 union had not complied with the requirement under Section 19(4) of the MRTUPULP Act, we feel that since we are allowing the writ petition on other two grounds, it may not be necessary to go into that question. | 1 | 6,799 | 3,039 | ### Instruction:
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not signed by any of the office bearers and moreover, said registers were not in prescribed proforma i.e. in Form J as prescribed under the Act. Such documentary evidence of cash book and membership registers without bearing the signature of any of the office bearers of the Union and without maintaining those in prescribed proforma, it can be easily said that such documents are not authentic and authorized and cannot be relied upon. I would like to point out from oral evidence of responsible office bearer of B.K.S. i.e. Vice President of B.K.S. namely, Deoram Bhosale that inspite of holding responsible post of B.K.S. he has not yet read the constitution of B.K.S. We do not find from the impugned order that the onus was discharged by respondent No.1 to prove that it was, at the relevant point of time, representing majority of the members. In paragraph 25 of the said judgment, the Industrial Court dealt with the affidavits and noted the arguments and counter arguments. The learned trial Judge was of the view that though these affidavits could not be taken as proof of membership but these affidavits could be taken to be the proof of the Deponents declaration that he had relinquished his membership from B.K.S. Thus in effect was an attempt to rely on these affidavits for proving the membership of respondent No.1 union. The court said, So, affidavits of 1556 employees of the Company filed on behalf of Applicant Union, can be accepted to substantiate the point that they brought an end to their relationship with B.K.S. and had not paid the membership fees to B.K.S. after December, 2002. Intention of as many as 1556 employees is very clear from their affidavits that they disconnected their tie as members with B.K.S. and come forward to file their respective affidavits of and on behalf of applicant union in this matter for getting the status of recognized union. This was not only against the rules of natural justice, as also about the established law, but against the order passed by the Industrial Court itself earlier. Even if these affidavits could have been taken into consideration, none of the affiants, except 100 affiants for which cross-examination was allowed, could have been taken into consideration. But admittedly the membership cannot be proved on the basis of the affidavits as it is the settled law and we will refer to the judgment in this connection shortly. The conclusion drawn by the learned Judge was, So, after comparing the entire evidence adduced by both unions on the point of strength of their membership read together with report of Investigating Officer as well, 1556 affidavits of the employees filed on record by Applicant Union, I am of the opinion that the Applicant Union was having more than 30% of membership of the total employees of the Company as well as larger membership than the membership of B.K.S. during the period of six months from the month of March, 2003 till August, 2003. So the affidavits filed by 1556 workers plays a decisive role in making the Court to reach the conclusion that the applicant Union represented more than 1556 of the total number of the workers of the undertaking. Therefore, on this ground the petitions are required to be allowed. 12. Whether the said affidavits can be taken into consideration or not, is according to the learned Counsel for the petitioner, concluded by the judgment of the Supreme Court in the case of Automobile Products of India Employees Union v/s Association of Engineering Workers, Bombay and others, reported in (1990 F.L.R. Vol.61 page 369). This was a case where the Industrial Court tried to find out as to who was representing majority of the members by adopting a method of secret ballot with the consent of contesting parties. This was also not approved by the Supreme Court. The Supreme Court dealt with the scheme of the Act and observed as under: "The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognized one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognized union. In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers, who voted, were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership being ignored. The consent of the parties to follow a procedure, which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the Legislature did not opt for the ballot as a method for determining the representative character of the union and laid down as elaborate procedure with necessary safeguards to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. Following this Judgment of the Supreme Court, the impugned order of the Industrial Court cannot be sustained. 13. Coming to the third ground, which challenges the order of the Tribunal on the ground that respondent No.1 union had not complied with the requirement under Section 19(4) of the MRTU & PULP Act, we feel that since we are allowing the writ petition on other two grounds, it may not be necessary to go into that question.
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Officer has also reported on page 5 of his report that membership registers of B.K.S. for the relevant period were not signed by any of the office bearers and moreover, said registers were not in prescribed proforma i.e. in Form J as prescribed under the Act. Such documentary evidence of cash book and membership registers without bearing the signature of any of the office bearers of the Union and without maintaining those in prescribed proforma, it can be easily said that such documents are not authentic and authorized and cannot be relied upon. I would like to point out from oral evidence of responsible office bearer of B.K.S. i.e. Vice President of B.K.S. namely, Deoram Bhosale that inspite of holding responsible post of B.K.S. he has not yet read the constitution ofdo not find from the impugned order that the onus was discharged by respondent No.1 to prove that it was, at the relevant point of time, representing majority of the members. In paragraph 25 of the said judgment, the Industrial Court dealt with the affidavits and noted the arguments and counter arguments. The learned trial Judge was of the view that though these affidavits could not be taken as proof of membership but these affidavits could be taken to be the proof of the Deponents declaration that he had relinquished his membership from B.K.S. Thus in effect was an attempt to rely on these affidavits for proving the membership of respondent No.1 union. The court said, So, affidavits of 1556 employees of the Company filed on behalf of Applicant Union, can be accepted to substantiate the point that they brought an end to their relationship with B.K.S. and had not paid the membership fees to B.K.S. after December, 2002. Intention of as many as 1556 employees is very clear from their affidavits that they disconnected their tie as members with B.K.S. and come forward to file their respective affidavits of and on behalf of applicant union in this matter for getting the status of recognized union. This was not only against the rules of natural justice, as also about the established law, but against the order passed by the Industrial Court itself earlier. Even if these affidavits could have been taken into consideration, none of the affiants, except 100 affiants for whichwas allowed, could have been taken into consideration. But admittedly the membership cannot be proved on the basis of the affidavits as it is the settled law and we will refer to the judgment in this connection shortly. The conclusion drawn by the learned Judge was, So, after comparing the entire evidence adduced by both unions on the point of strength of their membership read together with report of Investigating Officer as well, 1556 affidavits of the employees filed on record by Applicant Union, I am of the opinion that the Applicant Union was having more than 30% of membership of the total employees of the Company as well as larger membership than the membership of B.K.S. during the period of six months from the month of March, 2003 till August, 2003. So the affidavits filed by 1556 workers plays a decisive role in making the Court to reach the conclusion that the applicant Union represented more than 1556 of the total number of the workers of the undertaking. Therefore, on this ground the petitions are required to be allowed.Whether the said affidavits can be taken into consideration or not, is according to the learned Counsel for the petitioner, concluded by the judgment of the Supreme Court in the case of Automobile Products of India Employees Union v/s Association of Engineering Workers, Bombay and others, reported in (1990 F.L.R. Vol.61 page 369). This was a case where the Industrial Court tried to find out as to who was representing majority of the members by adopting a method of secret ballot with the consent of contesting parties. This was also not approved by the Supreme Court. The Supreme Court dealt with the scheme of the Act and observed asfacts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognized one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognized union. In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers, who voted, were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership beingconsent of the parties to follow a procedure, which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the Legislature did not opt for the ballot as a method for determining the representative character of the union and laid down as elaborate procedure with necessary safeguards to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of thethis Judgment of the Supreme Court, the impugned order of the Industrial Court cannot be sustained.Coming to the third ground, which challenges the order of the Tribunal on the ground that respondent No.1 union had not complied with the requirement under Section 19(4) of the MRTUPULP Act, we feel that since we are allowing the writ petition on other two grounds, it may not be necessary to go into that question.
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STATE OF BIHAR & ORS Vs. SHYAMA NANDAN MISHRA | promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants. 32. To understand the legal consequences arising therefrom, useful reference can be made to R. V. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. [1990] 1 W.L.R 1545 (1989) where Lord Justice of Appeal, Thomas Bingham, while invoking fairness as a rationale for protecting legitimate expectations, expressed the following :- If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. The doctrine of legitimate expectation is rooted in fairness. 33. Another facet of denial of legitimate expectations is underscored by the Court of Appeal of England and Wales in the seminal case of Coughlan R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213, where the Court preferred to use abuse of power as one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation. In the Courts opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power. In the present case, the abuse of power is discernible in the States disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play. 34. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Governments action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court. 35. Next thing to consider is the plea of the BES Association as the Intervenor in this proceeding and the submissions made on their behalf by the learned senior counsel Mr. Vijay Hansaria. On this, the first observation to be made is that the rights of an intervener are circumscribed. The BES could have arrayed themselves in the High Court but decided at their own peril, to keep away. The Writ Petition of the respondent was pending for about 6 years in the High Court and those in the BES, who are holding key positions in the education department, could not be oblivious of CWJ Case No. 18793 of 2008 and other connected matters. As such, within the limited scope available to them, the intervenors, who were sitting on the fence all along, cannot now be permitted to plead a new case for the first time before this Court. Moreover, the Counter Affidavit filed by the State before the High Court, do not persuade us to lean in favour of the members of the BES Association. 36. In the earlier rounds, this court in Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES with the BES and the unfair conduct of the Bihar government in safeguarding the interests of those in the BES cadre. Those previous challenges to the merger decision were rejected by the Court. As such the BES Association, as the party watching from the wings, cannot be permitted to secure now what they failed to achieve in the previous litigations. In circumstances like this it needs to be said that in an adversarial litigation, the fence sitters cannot be placed at par with the front runners. 37. In consequence of the foregoing discussion, our finding is that the +2 lecturers posts were created in the BSES Cadre. This was represented in the Notification (13.11.1985), and also in the Advertisement No. 1/87. The conduct of the Government in providing pay scale parity with the BSES teachers in the secondary schools, reinforces such conclusion. These relevant and attending circumstances eclipse the implication of the ex-cadre reference in the appointment letters. What is also discernible is that the encadrement through notification dated 23.06.2009 has frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block the respondents promotion to key positions, particularly in the administrative wing of the Education department. Such unfairness in States action cannot be countenanced by Court. Resultantly we record our approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them. | 0[ds]20. It is evident from the Notification dated 13.11.1985 that the posts of + 2 lecturers (in the government schools) were created in the cadre of BSES, in the pay scale of Rs. 940-1660/-. The cadre for the +2 lecturers posted in the nationalized schools was not specified therein, though the posts were created in the same pay scale. The subsequent Advertisement No. 1/87 also unequivocally stated that the applications for +2 Lecturers in Government schools were invited in the BSES Cadre in the pay scale of Rs. 940- 1660/-. Those selected were then granted fortuitous appointment in either the government or the nationalized schools.21. That the posts were constituted in the BSES Cadre is adequately reinforced in the judgment dated 30.09.1997 in the CWJC No. 2445/1994 by Justice S.J Mukhopadhaya, through which, the artificial distinction in both categories of +2 lecturers (posted in either Government or Taken Over schools) was obliterated. It is a fact that the Bihar Pradesh +2 Lecturers Association moved Court primarily for redressal of the pay scale anomaly of the +2 lecturers appointed in the Government and taken over schools, out of the common advertisement No. 1/87. It was projected in those proceedings that while accepting the 5th Pay Revision Committees recommendations, the State Government provided for distinct pay scales to lecturers serving in the Government Secondary Schools and the Nationalized Secondary Schools. The Court noticed the discrimination between both sets of lecturers, performing similar duty with similar nature of job and same qualifications. The +2 lecturers accordingly were held entitled to same scale of pay, i.e., Rs. 2000- 3500/- as fixed for the members of the Subordinate Education Service (Junior Selection Grade). This way, not only the pay difference was eliminated but more significantly for this case, the lecturers serving in Government/Nationalized +2 schools were treated as equivalent to members of the BSES cadre by offering the same pay scale attached to the BSES members. Subsequently, in compliance of the judgment, the Finance Department notified the common pay scale of Rs. 2000- 3500/- for the +2 lecturers in the Taken Over schools vide its Resolution dated 10.06.1999, thereby effectively treating them to be at par with the Subordinate Education Service teachers.22. The above situation would negate the States contention that the +2 lecturers are outside the BSES cadre, only because the appointment letters stated that their appointment was against ex-cadre posts on temporary basis. Significantly, the pay scale mentioned in the appointment order was Rs. 940-1660/-, which matched the pay scale offered to the lecturers in the Junior Selection Grade of the BSES (as reflected in the notification dated 13.11.1985 and the advertisement No. 1/87).23. The noteworthy take away from above is that the appointment letter is at variance with all other relevant documents, such as the advertisement; the notification (13.11.1985)creating the posts in BSES; as well as the Finance Department notifications, offering pay scale equivalent to the members of the BSES. The appointment letters, despite suggesting the post to be of ex-cadre category, notably offered the same pay scale attached to Government school lecturers in the BSES Cadre. The learned counsel for the respondents on this aspect therefore appears to be correct in his submission that the reference to ex-cadre in the appointment letters was only to allay the anxiety of the Assistant Teachers in the Government Secondary Schools (members of the BSES), who apprehended loss of their seniority. In such circumstances, the ex-cadre reference in the appointment letters must not, in our view, eclipse all the other contemporaneous documents, supporting the contentions of the respondents.On this, it is seen that the government is closemouthed and rather vague on the total posts which existed in 1977; how many posts were created subsequently and the precise number of posts which existed as on 07.07.2006. Therefore, the State cannot be allowed to raise such contentions when they have failed to disclose how many posts existed initially and the stages at which, additional posts were created by the government. Besides, the merger decision (07.07.2006) pertinently omitted to say that only posts in existence in 1977, were intended to be merged.25. Moreover, the Government decision (06.10.2006), through which the +2 lecturers were denied the benefit of merger with the BES, was not founded on the ground that posts of +2 lecturers were not borne in 1977. The ostensible reason was that the +2 lecturers were never recognized in the BSES. Such attempt by the government to supplement reasons, not found in their order, cannot legally be permitted. In situation of this kind, the ratio in Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi 1978 (1) SCC 405 is worth remembering where the Court so correctly declared that validity of an order by a statutory functionary must be judged by the reasons mentioned therein and supplementary reasons in the shape of affidavits must be excluded.26. Staying with the same point, we may also remind ourselves of the telling opinion in Commr. of Police, Bombay Vs. Gordhandas Bhanji AIR 1952 SC 16 where J. Vivian Bose illuminatingly wrote as under:Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.Taking a cue from above, it must be said unequivocally that the State must not be allowed to bring in additional explanation to justify their actions when those are conspicuous by their absence, in the government decision.Only for this ostensible reason, the +2 lecturers in nationalized and Government schools were amalgamated with the teachers of nationalized schools, vide notification dated 23.06.2009. On this, what is relevant is that no intelligible differentia could be pointed out by the states counsel to sustain such arbitrary classification between +2 lecturers and the BSES secondary level teachers, posted in government schools. Therefore, such contention from the appellants side, being devoid of any foundation, is considered but rejected.28. Significantly, as per Advertisement 1/87, the lower pay scale of Rs. 850 – 1360/- was offered to the teachers in the Secondary Schools in the cadre of BSES as compared to the pay scale offered to the + 2 lecturers. Furthermore, the academic qualifications specified therein for + 2 Lecturers was Post Graduation in 2nd division, whereas for other posts, a bare graduate would satisfy the prescribed qualification. As such, the exclusion of the respondents from the BSES cadre and consequently from BES, despite rendering continuous services in the same government secondary schools as teacher members of the BSES, has led to a discriminatory situation, wherein, the BSES teachers who are junior (in terms of education qualifications and pay scale) to the respondents in Government secondary schools, have got the benefit of higher scale of pay and also avenues of promotion to key controlling positions in the education department. This would surely infringe the rights of the +2 lecturers, guaranteed under Article 14 and Article 16(1) of the Constitution.29. Instead of rectifying the anomalous situation noticed above, the Government, in a rather arbitrary fashion and without any application of mind to the issue, vide notification dated 23.06.2009, surprisingly positioned the +2 lecturers at par with the teachers of the nationalized secondary schools. The unacceptable justification given for this is that as a result of the + 2 lecturers placement into the cadre of nationalized school teachers, the +2 lecturers have been provided the promotional avenue to academic posts of Head Master, and higher scale has also been provided for them. However, the +2 lecturers are conspicuously denied the opportunities for promotion to key administrative posts which is available to those in the BES Cadre. Such arbitrary action of the government in favoring the BES officers to enable them to exclusively occupy the key administrative posts, was noticed and was subjected to courts caustic comments in the previous rounds of litigation (See discussion Supra Note 4). Having read those and also taking into account the repeated attempts by the state to inordinately favour those in the BES cadre, we are constrained to observe that the state government is not acting bonafide and is persisting in their iniquitous attempt to deny to the respondents, what is legitimately due to them.30. The following discriminatory action of the State is necessary to be noticed to indicate their iniquitous conduct. Firstly, the Bihar Non-Government Secondary Schools (Taken over of Control and Management) Act, 1981, does not authorize determination of the service conditions of the +2 lecturers. The 1981 Act was intended to provide for taking over of non-government secondary schools under the state control, for improvement, better organization and development of Secondary Education in the state of Bihar. The +2 lecturers in government schools cannot be encadred with teachers of Taken Over Schools since the definition of Teacher in the 1981 Act shows Teacher in the Taken Over Secondary Schools. Section 9 enables the State Government to determine the service conditions of the Headmaster, Teacher and non-teaching staff of only the Taken Over Secondary Schools(but not of government schools). Neither section 9 nor Section 15 of the 1981 Act empowers the State Government to amend Rules to expand the scope of the Act. As such, the 2009 Rules, introducing the notification (23.06.2009), purported to be framed under section 9 read with section 15 of the 1981 Act, are found to be at variance with the provisions and the purpose of the 1981 Act. The Notification (23.06.2009) is well beyond the ambit of the 1981 Act, and could not therefore have been issued, without the necessary amendments to the 1981 Act.31. Next, let us test the impugned action of the Government on the anvil of the Doctrine of Legitimate Expectation. The notification (23.06.2009) besides being legally untenable, would also deny the substantive legitimate expectations, the respondents nurtured, as members of the government schools in the BSES cadre. The denial is particularly glaring in the absence of promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants.In the present case, the abuse of power is discernible in the States disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play.34. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Governments action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court.35. Next thing to consider is the plea of the BES Association as the Intervenor in this proceeding and the submissions made on their behalf by the learned senior counsel Mr. Vijay Hansaria. On this, the first observation to be made is that the rights of an intervener are circumscribed. The BES could have arrayed themselves in the High Court but decided at their own peril, to keep away. The Writ Petition of the respondent was pending for about 6 years in the High Court and those in the BES, who are holding key positions in the education department, could not be oblivious of CWJ Case No. 18793 of 2008 and other connected matters. As such, within the limited scope available to them, the intervenors, who were sitting on the fence all along, cannot now be permitted to plead a new case for the first time before this Court. Moreover, the Counter Affidavit filed by the State before the High Court, do not persuade us to lean in favour of the members of the BES Association.36. In the earlier rounds, this court in Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES with the BES and the unfair conduct of the Bihar government in safeguarding the interests of those in the BES cadre. Those previous challenges to the merger decision were rejected by the Court. As such the BES Association, as the party watching from the wings, cannot be permitted to secure now what they failed to achieve in the previous litigations. In circumstances like this it needs to be said that in an adversarial litigation, the fence sitters cannot be placed at par with the front runners.37. In consequence of the foregoing discussion, our finding is that the +2 lecturers posts were created in the BSES Cadre. This was represented in the Notification (13.11.1985), and also in the Advertisement No. 1/87. The conduct of the Government in providing pay scale parity with the BSES teachers in the secondary schools, reinforces such conclusion. These relevant and attending circumstances eclipse the implication of the ex-cadre reference in the appointment letters. What is also discernible is that the encadrement through notification dated 23.06.2009 has frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block the respondents promotion to key positions, particularly in the administrative wing of the Education department. Such unfairness in States action cannot be countenanced by Court. Resultantly we record our approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them. | 0 | 5,803 | 2,749 | ### 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:
promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants. 32. To understand the legal consequences arising therefrom, useful reference can be made to R. V. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. [1990] 1 W.L.R 1545 (1989) where Lord Justice of Appeal, Thomas Bingham, while invoking fairness as a rationale for protecting legitimate expectations, expressed the following :- If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. The doctrine of legitimate expectation is rooted in fairness. 33. Another facet of denial of legitimate expectations is underscored by the Court of Appeal of England and Wales in the seminal case of Coughlan R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213, where the Court preferred to use abuse of power as one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation. In the Courts opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power. In the present case, the abuse of power is discernible in the States disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play. 34. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Governments action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court. 35. Next thing to consider is the plea of the BES Association as the Intervenor in this proceeding and the submissions made on their behalf by the learned senior counsel Mr. Vijay Hansaria. On this, the first observation to be made is that the rights of an intervener are circumscribed. The BES could have arrayed themselves in the High Court but decided at their own peril, to keep away. The Writ Petition of the respondent was pending for about 6 years in the High Court and those in the BES, who are holding key positions in the education department, could not be oblivious of CWJ Case No. 18793 of 2008 and other connected matters. As such, within the limited scope available to them, the intervenors, who were sitting on the fence all along, cannot now be permitted to plead a new case for the first time before this Court. Moreover, the Counter Affidavit filed by the State before the High Court, do not persuade us to lean in favour of the members of the BES Association. 36. In the earlier rounds, this court in Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES with the BES and the unfair conduct of the Bihar government in safeguarding the interests of those in the BES cadre. Those previous challenges to the merger decision were rejected by the Court. As such the BES Association, as the party watching from the wings, cannot be permitted to secure now what they failed to achieve in the previous litigations. In circumstances like this it needs to be said that in an adversarial litigation, the fence sitters cannot be placed at par with the front runners. 37. In consequence of the foregoing discussion, our finding is that the +2 lecturers posts were created in the BSES Cadre. This was represented in the Notification (13.11.1985), and also in the Advertisement No. 1/87. The conduct of the Government in providing pay scale parity with the BSES teachers in the secondary schools, reinforces such conclusion. These relevant and attending circumstances eclipse the implication of the ex-cadre reference in the appointment letters. What is also discernible is that the encadrement through notification dated 23.06.2009 has frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block the respondents promotion to key positions, particularly in the administrative wing of the Education department. Such unfairness in States action cannot be countenanced by Court. Resultantly we record our approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them.
### Response:
0
### Explanation:
non-government secondary schools under the state control, for improvement, better organization and development of Secondary Education in the state of Bihar. The +2 lecturers in government schools cannot be encadred with teachers of Taken Over Schools since the definition of Teacher in the 1981 Act shows Teacher in the Taken Over Secondary Schools. Section 9 enables the State Government to determine the service conditions of the Headmaster, Teacher and non-teaching staff of only the Taken Over Secondary Schools(but not of government schools). Neither section 9 nor Section 15 of the 1981 Act empowers the State Government to amend Rules to expand the scope of the Act. As such, the 2009 Rules, introducing the notification (23.06.2009), purported to be framed under section 9 read with section 15 of the 1981 Act, are found to be at variance with the provisions and the purpose of the 1981 Act. The Notification (23.06.2009) is well beyond the ambit of the 1981 Act, and could not therefore have been issued, without the necessary amendments to the 1981 Act.31. Next, let us test the impugned action of the Government on the anvil of the Doctrine of Legitimate Expectation. The notification (23.06.2009) besides being legally untenable, would also deny the substantive legitimate expectations, the respondents nurtured, as members of the government schools in the BSES cadre. The denial is particularly glaring in the absence of promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter-se seniority in the common seniority list, but the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants.In the present case, the abuse of power is discernible in the States disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play.34. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Governments action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court.35. Next thing to consider is the plea of the BES Association as the Intervenor in this proceeding and the submissions made on their behalf by the learned senior counsel Mr. Vijay Hansaria. On this, the first observation to be made is that the rights of an intervener are circumscribed. The BES could have arrayed themselves in the High Court but decided at their own peril, to keep away. The Writ Petition of the respondent was pending for about 6 years in the High Court and those in the BES, who are holding key positions in the education department, could not be oblivious of CWJ Case No. 18793 of 2008 and other connected matters. As such, within the limited scope available to them, the intervenors, who were sitting on the fence all along, cannot now be permitted to plead a new case for the first time before this Court. Moreover, the Counter Affidavit filed by the State before the High Court, do not persuade us to lean in favour of the members of the BES Association.36. In the earlier rounds, this court in Bihar State Govt. Secondary School Teachers Assn. Vs. Bihar Education Service Assn. (Supra) and also in the Contempt proceedings flowing therefrom in Bihar State Govt. Secondary School Teachers Assn. Vs. Ashok Kumar Sinha (Supra) critically noted the vigorous attempts by the BES Association in obstructing the integration of the BSES with the BES and the unfair conduct of the Bihar government in safeguarding the interests of those in the BES cadre. Those previous challenges to the merger decision were rejected by the Court. As such the BES Association, as the party watching from the wings, cannot be permitted to secure now what they failed to achieve in the previous litigations. In circumstances like this it needs to be said that in an adversarial litigation, the fence sitters cannot be placed at par with the front runners.37. In consequence of the foregoing discussion, our finding is that the +2 lecturers posts were created in the BSES Cadre. This was represented in the Notification (13.11.1985), and also in the Advertisement No. 1/87. The conduct of the Government in providing pay scale parity with the BSES teachers in the secondary schools, reinforces such conclusion. These relevant and attending circumstances eclipse the implication of the ex-cadre reference in the appointment letters. What is also discernible is that the encadrement through notification dated 23.06.2009 has frustrated the legitimate expectations of the respondents and was undertaken with the unfair aim to block the respondents promotion to key positions, particularly in the administrative wing of the Education department. Such unfairness in States action cannot be countenanced by Court. Resultantly we record our approval with the reasoning and conclusions in the impugned judgment in favour of the +2 lecturers to the effect that they are indeed the members of the Subordinate Educational Service and the State Government must treat the +2 lecturers appointed pursuant to the Advertisement No. 1/87 as members of the Subordinate Educational Service and all service benefits as the members of the Subordinate Educational Service should therefore be extended to them.
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Eastern Coalfields Ltd Vs. Dugai Kumar | yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." (emphasis supplied) 19. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi, (1969) 2 SCR 824 and Rabindra Nath Bose v. Union of India, (1970) 1 SCR 697, this Court ruled that even in cases of violation or infringement of Fundamental Rights, a writ Court may take into account delay and laches on the part of the petitioner in approaching the Court. And if there is gross or unexplained delay, the Court may refuse to grant relief in favour of such petitioner. 20. It is not necessary for us to refer to several decisions on this point wherein a similar view has been taken by this Court. Suffice it to say that in Express Publications v. Union of India, (2004) 11 SCC 526 , this Court referring to Tilokchand Motichand, Rabindranath Bose and Ramchandra Deodhar v. State of Maharashtra, (1974) 1 SCC 317 , explained the principle thus; "No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. It has to be remembered that the constitutional remedy under Article 32 is discretionary. In one case, this Court may decline discretionary relief if person aggrieved has slept over for long number of years. In another case, depending upon the nature of violation, court may ignore delay and pronounce upon the invalidity of a provision. It will depend from case to case." (emphasis supplied) 21. Prima facie, we are satisfied that the learned single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MTs of coal to the writ petitioner. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the Court could pass "usual order" and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned single Judge to the extent of "balance quantity of 1008 MTs of coal", which was based on the ‘statement by the counsel for the Company.22. In our view, however, the learned counsel for the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999. 23. On September 13, 1999, the following order was passed by the learned single Judge; "Mr. D.P. Majumdar, Adv. Mentions and submits.Mr. A.K. Mitra, Adv. Appears and submits.The Court : The last but third paragraph of the order dated 6.9.99 is corrected in the manner as follows:-The respondents are directed to allot balance quantity of 6800 M.T. of Steam Coke, Grade-D quality of Coal to the petitioner in terms of the release order dated 25.5.1989 from Nayandanga Colliery, Mugma Area in terms of Annexure ‘C.The supply is to be effected within a period of eight weeks from the date of communication of this order.This order is incorporating into the earlier order dated 6.9.99.All parties are to act on a signed copy of the minutes of this order." 24. We are also of the view that in the light of the above order, the Division Bench ought to have interfered with the direction of the learned single Judge in the order dated September 13, 1999 and intra-Court appeal ought to have been allowed. When the intra-Court appeal was dismissed, the appellant approached this Court by filing Special Leave Petition. It was dismissed as withdrawn as the Company wanted to move the Division Bench in Review Petition. To us, on the facts and in the circumstances of the case, the Division Bench ought to have considered the aforesaid aspect and passed an appropriate order in accordance with law.25. From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered sale deed to the Company which has already been paid to him. He was also entitled to 1008 MTs of coal which was given to him as per the Policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of ‘usual order dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity of 6800 MTs of steak coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed. | 1[ds]13. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as the technical objection raised by the Company with regard to territorial jurisdiction of the High Court of Calcutta is concerned, in our opinion, it would not be appropriate to set aside the order passed in favour of the writ petitioner on that ground. It is clear from the record that the writ petition came up for admission hearing on September 6, 1999 and the counsel for the appellant-Company was present. Not only that he did not raise any objection as to territorial jurisdiction of the Court, he expressly made a statement before the Court to pass "usual order". Accordingly, an order as passed directing the Company to allot "balance quantity of 1008 MTs" of coal to the writ petitioner. We are, therefore, unable to uphold the contention of the learned counsel for the appellant-Company that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition.14. But we are also unable to uphold the contention of the writ petitioner that the appeal is not maintainable since the Company had challenged the order passed in Review Petition dated January 28, 2002 and not the main order dated February 17, 2000 dismissing intra-Court appeal. It was submitted by the learned counsel for the appellant that when Review Petition was dismissed, the order passed by the Division Bench in intra-Court appeal got merged in the order of Review Petition. But even otherwise, when the order passed in the Review Petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.15. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant-Company. It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution, that he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.Prima facie, we are satisfied that the learned single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MTs of coal to the writ petitioner. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the Court could pass "usual order" and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned single Judge to the extent of "balance quantity of 1008 MTs of coal", which was based on the ‘statement by the counsel for the Company.22. In our view, however, the learned counsel for the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999.We are also of the view that in the light of the above order, the Division Bench ought to have interfered with the direction of the learned single Judge in the order dated September 13, 1999 and intra-Court appeal ought to have been allowed. When the intra-Court appeal was dismissed, the appellant approached this Court by filing Special Leave Petition. It was dismissed as withdrawn as the Company wanted to move the Division Bench in Review Petition. To us, on the facts and in the circumstances of the case, the Division Bench ought to have considered the aforesaid aspect and passed an appropriate order in accordance with law.25. From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered sale deed to the Company which has already been paid to him. He was also entitled to 1008 MTs of coal which was given to him as per the Policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of ‘usual order dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity of 6800 MTs of steak coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed. | 1 | 4,356 | 995 | ### Instruction:
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yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." (emphasis supplied) 19. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi, (1969) 2 SCR 824 and Rabindra Nath Bose v. Union of India, (1970) 1 SCR 697, this Court ruled that even in cases of violation or infringement of Fundamental Rights, a writ Court may take into account delay and laches on the part of the petitioner in approaching the Court. And if there is gross or unexplained delay, the Court may refuse to grant relief in favour of such petitioner. 20. It is not necessary for us to refer to several decisions on this point wherein a similar view has been taken by this Court. Suffice it to say that in Express Publications v. Union of India, (2004) 11 SCC 526 , this Court referring to Tilokchand Motichand, Rabindranath Bose and Ramchandra Deodhar v. State of Maharashtra, (1974) 1 SCC 317 , explained the principle thus; "No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. It has to be remembered that the constitutional remedy under Article 32 is discretionary. In one case, this Court may decline discretionary relief if person aggrieved has slept over for long number of years. In another case, depending upon the nature of violation, court may ignore delay and pronounce upon the invalidity of a provision. It will depend from case to case." (emphasis supplied) 21. Prima facie, we are satisfied that the learned single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MTs of coal to the writ petitioner. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the Court could pass "usual order" and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned single Judge to the extent of "balance quantity of 1008 MTs of coal", which was based on the ‘statement by the counsel for the Company.22. In our view, however, the learned counsel for the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999. 23. On September 13, 1999, the following order was passed by the learned single Judge; "Mr. D.P. Majumdar, Adv. Mentions and submits.Mr. A.K. Mitra, Adv. Appears and submits.The Court : The last but third paragraph of the order dated 6.9.99 is corrected in the manner as follows:-The respondents are directed to allot balance quantity of 6800 M.T. of Steam Coke, Grade-D quality of Coal to the petitioner in terms of the release order dated 25.5.1989 from Nayandanga Colliery, Mugma Area in terms of Annexure ‘C.The supply is to be effected within a period of eight weeks from the date of communication of this order.This order is incorporating into the earlier order dated 6.9.99.All parties are to act on a signed copy of the minutes of this order." 24. We are also of the view that in the light of the above order, the Division Bench ought to have interfered with the direction of the learned single Judge in the order dated September 13, 1999 and intra-Court appeal ought to have been allowed. When the intra-Court appeal was dismissed, the appellant approached this Court by filing Special Leave Petition. It was dismissed as withdrawn as the Company wanted to move the Division Bench in Review Petition. To us, on the facts and in the circumstances of the case, the Division Bench ought to have considered the aforesaid aspect and passed an appropriate order in accordance with law.25. From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered sale deed to the Company which has already been paid to him. He was also entitled to 1008 MTs of coal which was given to him as per the Policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of ‘usual order dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity of 6800 MTs of steak coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed.
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13. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as the technical objection raised by the Company with regard to territorial jurisdiction of the High Court of Calcutta is concerned, in our opinion, it would not be appropriate to set aside the order passed in favour of the writ petitioner on that ground. It is clear from the record that the writ petition came up for admission hearing on September 6, 1999 and the counsel for the appellant-Company was present. Not only that he did not raise any objection as to territorial jurisdiction of the Court, he expressly made a statement before the Court to pass "usual order". Accordingly, an order as passed directing the Company to allot "balance quantity of 1008 MTs" of coal to the writ petitioner. We are, therefore, unable to uphold the contention of the learned counsel for the appellant-Company that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition.14. But we are also unable to uphold the contention of the writ petitioner that the appeal is not maintainable since the Company had challenged the order passed in Review Petition dated January 28, 2002 and not the main order dated February 17, 2000 dismissing intra-Court appeal. It was submitted by the learned counsel for the appellant that when Review Petition was dismissed, the order passed by the Division Bench in intra-Court appeal got merged in the order of Review Petition. But even otherwise, when the order passed in the Review Petition is challenged, it would not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner.15. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant-Company. It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution, that he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.Prima facie, we are satisfied that the learned single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MTs of coal to the writ petitioner. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the Court could pass "usual order" and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned single Judge to the extent of "balance quantity of 1008 MTs of coal", which was based on the ‘statement by the counsel for the Company.22. In our view, however, the learned counsel for the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999.We are also of the view that in the light of the above order, the Division Bench ought to have interfered with the direction of the learned single Judge in the order dated September 13, 1999 and intra-Court appeal ought to have been allowed. When the intra-Court appeal was dismissed, the appellant approached this Court by filing Special Leave Petition. It was dismissed as withdrawn as the Company wanted to move the Division Bench in Review Petition. To us, on the facts and in the circumstances of the case, the Division Bench ought to have considered the aforesaid aspect and passed an appropriate order in accordance with law.25. From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered sale deed to the Company which has already been paid to him. He was also entitled to 1008 MTs of coal which was given to him as per the Policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of ‘usual order dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity of 6800 MTs of steak coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed.
|
M/S. I.T.I. Ltd Vs. M/S. Siemens Public Communi.Network Ltd | is now settled by the judgment of a three-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. and another in C.A.No. 6527/2001 decided on 13-3-2002 wherein while dealing with a similar argument arising out of the present Act, this Court held : While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion. (12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. (13) We also do not find much force in the argument of learned counsel for the appellant based on S. 5 of the Act. It is to be noted that it is under this part, namely, Part I of the Act that S. 37(1) of the Act is found,which provides for an appeal to a Civil Court. The term Court referred to in the said provision is defined under S. 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a Civil Court. In such a situation, the proceedings before such Court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under S. 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 5 will not be attracted because conferment of appellate power on the Civil Court in Part I of the Act attracts the provisions of the Code also. (14) Mr. Parasaran then contended that since it is an accepted fact that this Court also has the jurisdiction to entertain an appeal, this appeal should not be rejected on the sole ground that there is a remedy available by way of a revision before the High Court. In support of this contention, he relied on the judgment of this Court in the case of Ram Shankar (supra) wherein it is noticed that this Court had entertained an appeal directly against a judgment and decree of a trial Court by passing the High Court. It is true that the power of this Court to entertain an appeal directly is not taken away merely because another remedy is available but then the question is, should this Court encourage litigants to indulge in hop, skip and jump to reach this Court either for the reason that the remedy from this Court would be quick or more efficacious? The answer, in our opinion, should be no. The judgment of this Court in M/s. Central Coal Fields (supra) does not, in any way, take a contra view from what is expressed by us hereinabove. In that case because of the peculiar fact situation, this Court entertained an appeal without the party first appreciating the High Court but then it should be noticed that this Court did not entertain the appeal to decide the same itself, it did so to refer the matter to arbitration proceedings and when an award made by the learned arbitrator was acceptable to all parties then the same was made a rule of this Court. Such is not the situation in the present case. Therefore, we do not think the appellant can take much support from the above case of this Court. (15) Learned counsel for the appellant next contended that assuming that the remedy of revision is available even then the same is not an efficacious alternate remedy because this appeal involves a very sensitive issue pertaining to the security of the country and which, according to the appellant, requires extreme urgency in deciding the same and the said requirement will not be possible if the appellant has to approach the High Court. We are not impressed with this argument addressed on behalf of the appellant because we notice from the record that the arbitration proceedings have started as far back as in the year 2001 and the parties instead of getting the arbitration concluded, have been litigating on interim applications till date. If indeed urgency was there then the party which feels the necessity of quick disposal would have concentrated more on completing the arbitral proceedings rather than spending its time in Court inviting orders of the High Court on interlocutory applications. Therefore, we are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected. (16) For the aforesaid reasons, | 0[ds]It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable(12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. It is to be noted that it is under this part, namely, Part I of the Act that S. 37(1) of the Act is found,which provides for an appeal to a Civil Court. The term Court referred to in the said provision is defined under S. 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a Civil Court. In such a situation, the proceedings before such Court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under S. 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 5 will not be attracted because conferment of appellate power on the Civil Court in Part I of the Act attracts the provisions of the Code alsowe are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected | 0 | 2,859 | 531 | ### Instruction:
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is now settled by the judgment of a three-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. and another in C.A.No. 6527/2001 decided on 13-3-2002 wherein while dealing with a similar argument arising out of the present Act, this Court held : While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion. (12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. (13) We also do not find much force in the argument of learned counsel for the appellant based on S. 5 of the Act. It is to be noted that it is under this part, namely, Part I of the Act that S. 37(1) of the Act is found,which provides for an appeal to a Civil Court. The term Court referred to in the said provision is defined under S. 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a Civil Court. In such a situation, the proceedings before such Court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under S. 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 5 will not be attracted because conferment of appellate power on the Civil Court in Part I of the Act attracts the provisions of the Code also. (14) Mr. Parasaran then contended that since it is an accepted fact that this Court also has the jurisdiction to entertain an appeal, this appeal should not be rejected on the sole ground that there is a remedy available by way of a revision before the High Court. In support of this contention, he relied on the judgment of this Court in the case of Ram Shankar (supra) wherein it is noticed that this Court had entertained an appeal directly against a judgment and decree of a trial Court by passing the High Court. It is true that the power of this Court to entertain an appeal directly is not taken away merely because another remedy is available but then the question is, should this Court encourage litigants to indulge in hop, skip and jump to reach this Court either for the reason that the remedy from this Court would be quick or more efficacious? The answer, in our opinion, should be no. The judgment of this Court in M/s. Central Coal Fields (supra) does not, in any way, take a contra view from what is expressed by us hereinabove. In that case because of the peculiar fact situation, this Court entertained an appeal without the party first appreciating the High Court but then it should be noticed that this Court did not entertain the appeal to decide the same itself, it did so to refer the matter to arbitration proceedings and when an award made by the learned arbitrator was acceptable to all parties then the same was made a rule of this Court. Such is not the situation in the present case. Therefore, we do not think the appellant can take much support from the above case of this Court. (15) Learned counsel for the appellant next contended that assuming that the remedy of revision is available even then the same is not an efficacious alternate remedy because this appeal involves a very sensitive issue pertaining to the security of the country and which, according to the appellant, requires extreme urgency in deciding the same and the said requirement will not be possible if the appellant has to approach the High Court. We are not impressed with this argument addressed on behalf of the appellant because we notice from the record that the arbitration proceedings have started as far back as in the year 2001 and the parties instead of getting the arbitration concluded, have been litigating on interim applications till date. If indeed urgency was there then the party which feels the necessity of quick disposal would have concentrated more on completing the arbitral proceedings rather than spending its time in Court inviting orders of the High Court on interlocutory applications. Therefore, we are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected. (16) For the aforesaid reasons,
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### Explanation:
It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable(12) In the said view of the matter, we are in respectful agreement with the view expressed by this Court in the case of Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on this question. It is to be noted that it is under this part, namely, Part I of the Act that S. 37(1) of the Act is found,which provides for an appeal to a Civil Court. The term Court referred to in the said provision is defined under S. 2(e) of the Act. From the said definition, it is clear that the appeal is not to any designated person but to a Civil Court. In such a situation, the proceedings before such Court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under S. 115 of the Code will not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under S. 37 provided for an appeal to the Civil Court and the application of Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under S. 5 will not be attracted because conferment of appellate power on the Civil Court in Part I of the Act attracts the provisions of the Code alsowe are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellants case so as to make an exception or permit the appellant to take a short cut to this Court. Therefore, the above argument of the appellant should also be rejected
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Kaviraj Basudevanand Vs. Mahant Harihar Gir (Dead) & Ors | definition of the expression khas possession in the Bihar Land Reforms Act, if anything is stronger from the point of view of the person who is actually cultivating the lands than that of a person who is working directly (the mines) under Section 9 of the Act. Therefore, the appellant would be entitled to his share in mines which had been worked directly by any co-sharer.8. Though the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under sub-section (2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those mines are.9. There is again the question of the area of the mine. For instance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the lease-hold property. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among the co-sharers of the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among his co-sharers were operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between the co-shares who had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise. | 1[ds]The submission is undoubtedlyAny decree which the plaintiff might get in respect of bakhast and zirat lands in this suit will not enable him to avoid the provisions of any law regarding ceiling on land in force in the State of Bihar.5. As regards the mines, however, there are certain difficulties. The Patna High Court was in error in holding that the benefit of S.9 of the Bihar Land Reofrms Act is not available to all persons jointly interested therein before the date of vesting and that it is restricted to the intermediary directly working the mines. In Sukhdeo Das v. Kashi Prasad, (ILR 37 Pat 918) = (AIR 1958 Pat 630 ) (FB) the Full Bench of the Patna High Court held that the provisions of the Bihar Land Reforms Act have to be construed in the light of the existing law and in the light of the history behind the legislation, and therefore, aas defined in Section 2 (r) does not mean a person who is actually in possession of the tenure and consequently the expression "khas possession of an intermediary" on the date of such vesting in Section 6 of the Act....does not mean the possession of the intermediary who was actually in possession on the date of the vesting to the exclusion of theKhas possession of the intermediary means the possession of the intermediary who was cultivating land either for his own benefit or in trust for others. If this be the position of an intermediary under the Act, then obviously the words "khas possession" occurring in Section 6 of the Act do not exclude constructive possession".6. Another Full Bench of the Patna High Court in (AIR 1965 Pat 117 (FB)) took the view that the decision under appeal in the present case that when the estate vested in the State of Bihar, awho was ot in possession of lnds used for agricultural or horticultural purposes was not entitled to any interest in it, was wrong and must be overruled.7. The matter has been finally settled by a decision of this Court inSCR 639) = (AIR 1971 SC 2251 ) in a case that had arisen under the Bihar Land Reforms Act itself. In that case it was observed "even if the appellants were in actual khas possession within the meaning of S.2(k) of the Act, it must be held that the plaintiff respondent, who was awas in constructive possession through the appellants, as, under the law, possession of oneis possession of alldeeming provision of S.6 must, therefore, enure for the benefit of all, who in the eye of law would be regarded as in actual possession". It was therefore, held that the plaintiff had not lost his share in the bakhast lands and had a right to them though not as aor proprietor but certainly as a raiyat under the provisions of the Act. This Court also observed that there was no reason to hold that the observations of this Court that in law possession of ones possession of all, as was held in P. L. Reddy v. L. L. Reddy (1957 SCR 195 , 202) = (AIR 1957 SC 314 ) were not applicable to the case before this Court. If that is so writ regard to bakhast and zirat lnds and aThough the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under(2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those minesinstance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of theproperty. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among theof the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among hiswere operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between thewho had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise. | 1 | 2,903 | 1,577 | ### 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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definition of the expression khas possession in the Bihar Land Reforms Act, if anything is stronger from the point of view of the person who is actually cultivating the lands than that of a person who is working directly (the mines) under Section 9 of the Act. Therefore, the appellant would be entitled to his share in mines which had been worked directly by any co-sharer.8. Though the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under sub-section (2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those mines are.9. There is again the question of the area of the mine. For instance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the lease-hold property. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among the co-sharers of the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among his co-sharers were operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between the co-shares who had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise.
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right to them though not as aor proprietor but certainly as a raiyat under the provisions of the Act. This Court also observed that there was no reason to hold that the observations of this Court that in law possession of ones possession of all, as was held in P. L. Reddy v. L. L. Reddy (1957 SCR 195 , 202) = (AIR 1957 SC 314 ) were not applicable to the case before this Court. If that is so writ regard to bakhast and zirat lnds and aThough the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under(2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those minesinstance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of theproperty. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among theof the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among hiswere operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between thewho had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise.
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Mukul Sharma Vs. Orion India (P.) Ltd. Through Its Managing Director | we furnish below the built-up areas calculated for drg. Nos.GBA/891/03A, GBA/891/04A and GBA/891/05A using our accepted definition of built-up area. Please note that all common area such as lift well, corridor, lobby, duct, etc., have been excluded as suggested by you. (All emphasis supplied) 7. It is unfortunate that the High Court has gone by the earlier understanding of the plaintiff on the concept of built-up area and wholly ignoring the understanding mutually entered into between the plaintiff and the defendant on a later date. According to the High Court, since the plaintiff had once accepted the position that built-up area included common areas, he is always bound by the same. If plaintiff had once accepted the position in regard to the concept of built-up area he cannot resile subsequently in view of bar under section 5 of the Indian Contract Act, 1872, once offer and acceptance is complete, it is held. 8. The relevant consideration by the High Court at para 26 of the impugned judgment reads as follows : If Ext.3 and Ext.4 are studied and compared it would appear that prima facie, defendant undertook to accept the definition of built up area given by the plaintiff and therafter deferred the matter for recalculation of the entitlement on the light of such definition. But in the subsequent communication, the defendant made recalculation as to entitlement of the plaintiff by applying his own definition of the built up area and thus included common areas in the built up area. This letter was written on 16.3.1998. But prior to that it is the plaintiff who had accepted the concept of built up area as given by the defendant in his letter dated 15.9.1997 and made his own calculation about the entitlement of built up area. According to the version of the plaintiff in the said letter dated 15.9.1997 (Ext.H), he was allotted possession of 8726.43 sq.ft of built up area in total in three floors, namely, first floor, mezzanine floor and the third floor. Out of this total built up area of 8726.43 sq.ft., plaintiff himself admitted in the said letter that there was 558.19 sq.ft. common area in the first floor, 544.74 sq.ft common area in the mezzanine floor and 540 sq.ft in the third floor. Thus, out of 8726.43 sq.ft built up area handed over to the plaintiff, there was 558.19 sq.ft + 554.74 sq.ft + 540 sq.ft = 1652.93 sq.ft common areas and balance 7083.50 sq.ft under exclusive possession of the plaintiff. The plaintiff after showing this calculation claimed thereafter that he was still entitled to 3445.57 sq.ft in the top floor i.e. eighth floor. The sum of 8726.43 sq.ft + 3445.57 sq.ft is 12172 sq.ft and so there is logic behind this calculation shown by the plaintiff. Once this calculation is accepted, it is clear that prior to issuance of letter 9.3.1998, the plaintiff had accepted the proposition that built up area would include common areas. If plaintiff had accepted the proposition of the defendant in regard to concept of built up area he cannot resile subsequently in view of bar under section 5 of the Indian Contract Act, 1872. 9. It is not a case where the plaintiff resiled from the agreement. It is a case where the defendant himself subsequently accepted the dispute raised by the plaintiff with regard to the concept of built-up area. In express terms, the respondent-defendant has subsequently agreed that the built-up area will not include the common area like lift well, corridor, lobby, duct, etc. Admittedly, the expression built up area is not defined in the sale deed. It is something to be deciphered from the conduct of the parties. No doubt, the appellant plaintiff had, after five years of the sale deed, as per letter Ex.H dated 15.9.1997 understood the built up area as including common area. But subsequently, he disputed the position and it was the respondent-defendant who accepted and agreed to the position that built up area does not include common area. It is not as if an attempt is made for interpreting the express terms of an agreement, by subsequent conduct. It is a situation where there is a dispute on a concept relating to an expression/concept which is not explained in the agreement. The plaintiff had initially understood the concept in a particular angle or manner. But that does not prevent him from raising a dispute. And on raising such a dispute, nothing prevented the defendant from insisting the plaintiff to stick to his original stand. On the contrary, it is the defendant who changed his stand as per Ex.3 and Ex.4 and accepted the position as raised by the plaintiff. Thereafter and therefor, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position. 10. In Abdulla Ahmed vs. Animendra Kissen Mitter – AIR 1950 SC 15 , this Court has dealt with a similar situation and it has been held that Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. This was followed in The Godhra Electricity Co. Ltd & Anr. vs. The State of Gujarat & Anr. - AIR 1975 SC 32 : In these circumstances, we do not think we will be justified in not following the decision of this Court in Abdulla Ahmed vs. Animendra Kissen Mitter – 1950 SCR 30 at p.46 = (AIR 1950 SC 15 at p.21), where this Court said that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument. | 1[ds]Thereafter and therefor, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position10. In Abdulla Ahmed vs. Animendra Kissen Mitter – AIR 1950 SC 15 , this Court has dealt with a similar situation and it has been held thatExtrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrumentThis was followed in The Godhra Electricity Co. Ltd & Anr. vs. The State of Gujarat & Anr. - AIR 1975 SC 32 :In these circumstances, we do not think we will be justified in not following the decision of this Court in Abdulla Ahmed vs. Animendra Kissen Mitter – 1950 SCR 30 at p.46 = (AIR 1950 SC 15 at p.21), where this Court said that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument | 1 | 1,585 | 238 | ### 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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we furnish below the built-up areas calculated for drg. Nos.GBA/891/03A, GBA/891/04A and GBA/891/05A using our accepted definition of built-up area. Please note that all common area such as lift well, corridor, lobby, duct, etc., have been excluded as suggested by you. (All emphasis supplied) 7. It is unfortunate that the High Court has gone by the earlier understanding of the plaintiff on the concept of built-up area and wholly ignoring the understanding mutually entered into between the plaintiff and the defendant on a later date. According to the High Court, since the plaintiff had once accepted the position that built-up area included common areas, he is always bound by the same. If plaintiff had once accepted the position in regard to the concept of built-up area he cannot resile subsequently in view of bar under section 5 of the Indian Contract Act, 1872, once offer and acceptance is complete, it is held. 8. The relevant consideration by the High Court at para 26 of the impugned judgment reads as follows : If Ext.3 and Ext.4 are studied and compared it would appear that prima facie, defendant undertook to accept the definition of built up area given by the plaintiff and therafter deferred the matter for recalculation of the entitlement on the light of such definition. But in the subsequent communication, the defendant made recalculation as to entitlement of the plaintiff by applying his own definition of the built up area and thus included common areas in the built up area. This letter was written on 16.3.1998. But prior to that it is the plaintiff who had accepted the concept of built up area as given by the defendant in his letter dated 15.9.1997 and made his own calculation about the entitlement of built up area. According to the version of the plaintiff in the said letter dated 15.9.1997 (Ext.H), he was allotted possession of 8726.43 sq.ft of built up area in total in three floors, namely, first floor, mezzanine floor and the third floor. Out of this total built up area of 8726.43 sq.ft., plaintiff himself admitted in the said letter that there was 558.19 sq.ft. common area in the first floor, 544.74 sq.ft common area in the mezzanine floor and 540 sq.ft in the third floor. Thus, out of 8726.43 sq.ft built up area handed over to the plaintiff, there was 558.19 sq.ft + 554.74 sq.ft + 540 sq.ft = 1652.93 sq.ft common areas and balance 7083.50 sq.ft under exclusive possession of the plaintiff. The plaintiff after showing this calculation claimed thereafter that he was still entitled to 3445.57 sq.ft in the top floor i.e. eighth floor. The sum of 8726.43 sq.ft + 3445.57 sq.ft is 12172 sq.ft and so there is logic behind this calculation shown by the plaintiff. Once this calculation is accepted, it is clear that prior to issuance of letter 9.3.1998, the plaintiff had accepted the proposition that built up area would include common areas. If plaintiff had accepted the proposition of the defendant in regard to concept of built up area he cannot resile subsequently in view of bar under section 5 of the Indian Contract Act, 1872. 9. It is not a case where the plaintiff resiled from the agreement. It is a case where the defendant himself subsequently accepted the dispute raised by the plaintiff with regard to the concept of built-up area. In express terms, the respondent-defendant has subsequently agreed that the built-up area will not include the common area like lift well, corridor, lobby, duct, etc. Admittedly, the expression built up area is not defined in the sale deed. It is something to be deciphered from the conduct of the parties. No doubt, the appellant plaintiff had, after five years of the sale deed, as per letter Ex.H dated 15.9.1997 understood the built up area as including common area. But subsequently, he disputed the position and it was the respondent-defendant who accepted and agreed to the position that built up area does not include common area. It is not as if an attempt is made for interpreting the express terms of an agreement, by subsequent conduct. It is a situation where there is a dispute on a concept relating to an expression/concept which is not explained in the agreement. The plaintiff had initially understood the concept in a particular angle or manner. But that does not prevent him from raising a dispute. And on raising such a dispute, nothing prevented the defendant from insisting the plaintiff to stick to his original stand. On the contrary, it is the defendant who changed his stand as per Ex.3 and Ex.4 and accepted the position as raised by the plaintiff. Thereafter and therefor, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position. 10. In Abdulla Ahmed vs. Animendra Kissen Mitter – AIR 1950 SC 15 , this Court has dealt with a similar situation and it has been held that Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. This was followed in The Godhra Electricity Co. Ltd & Anr. vs. The State of Gujarat & Anr. - AIR 1975 SC 32 : In these circumstances, we do not think we will be justified in not following the decision of this Court in Abdulla Ahmed vs. Animendra Kissen Mitter – 1950 SCR 30 at p.46 = (AIR 1950 SC 15 at p.21), where this Court said that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument.
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Thereafter and therefor, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position10. In Abdulla Ahmed vs. Animendra Kissen Mitter – AIR 1950 SC 15 , this Court has dealt with a similar situation and it has been held thatExtrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrumentThis was followed in The Godhra Electricity Co. Ltd & Anr. vs. The State of Gujarat & Anr. - AIR 1975 SC 32 :In these circumstances, we do not think we will be justified in not following the decision of this Court in Abdulla Ahmed vs. Animendra Kissen Mitter – 1950 SCR 30 at p.46 = (AIR 1950 SC 15 at p.21), where this Court said that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument
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Vidyadhar Krishnarao Mungi & Others Vs. Usman Gani Saheb Konkani & Others | suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.22. In support of his finding in favour of the plaintiffs, the trial court has heavily relied on Ex. 100. It is a receipt executed on March 31, 1959 by Dattatraya in favour of first defendant. It acknowledges payment of Rs. 10,000/- by the first defendant to Dattatraya and his brother Krishnaji towards payment of sale consideration of Rs. 30,000/- for sale of the suit land in favour of first defendant. The recital in the receipt relied on by the trial court is this:"the land bearing S. No. 954 ... ... ... is our ancestral ownership .. we have received in all Rs. 7,000/- ... made up of the sum of Rs. 5,000/- .. and the sum of Rs. 2,000/-. Further your have this day given Rs. 1,000/- in cash and a cheque .. dated 15-4-1959 for rupees two thousand. Thus in all Rs. 10,000/- are received towards the transaction (agreement) in respect of the suit land. The receipt is given in writing." It is signed by Dattatraya for self and for Krishnaji.23. In this cross-examination the first defendant said in regard to this document."I ... demanded the receipt for Rupees 10,000/- when payment of Rs. 3,000/- was made. We demanded the receipt relating to the agreement of sale of the suit land. The writer of Ex. 100 was known to him. He was some account writer of Razak. Ex. 100 mentions that the land was ancestral land of defendants 2 and 3. On the basis of this writing the land was purchased at the time of compromise decree."24. The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from the cross-examination of the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in his cross-examination that he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put in cross-examination to the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of such cross-examination, we think it will be unfair to the first defendant to draw any adverse inference against him. | 0[ds]It is also important to observe that Dattatraya, who appeared as a witness for the plaintiffs, did not speak about this motive. On the contrary, he admitted in histhat he had made "no inquiry about the purchase of suit land from mother." He further admitted that he "never questioned father why he purchased the suit land benami in the name of mother." So his evidence does not bear out the alleged motive. None of the plaintiffs have entered the witness box. Under the Hindu Law Sadashiv could claim maintenance from Laxman only from ancestral property in his hand. Sadashiv could not claim maintenance from anyproperty of Laxman. This legal position is not disputed by counsel for the appellants. But he says that Laxman could have hardly known the law. It is difficult to believe that Laxman was ignorant of the law. He was a petition writer. His occupation brought him in constant touch with lawyers and litigants. Accordingly, it is not improbable that he had acquired information that thisproperty was in no danger. So there was no reason why Laxman should have concealed the purchase of the suit land from Sadashiv.21. There is yet another important circumstances which discounts the suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from theof the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in histhat he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put into the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of suchwe think it will be unfair to the first defendant to draw any adverse inference againstthe trial court fell in error in relying on documents of dubious evidentiary value. The documents were, as already discussed, also consistent with the real ownership of Jankibai. So the trial court was wrong in thinking that it was reasonably probable that Laxman was the real owner of the suit land. In our view, the High Court has correctly appraised the entire evidence and has come to the right conclusion that the real owner of the suit land was Jankibai, and not Laxman. | 0 | 5,323 | 1,120 | ### Instruction:
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suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.22. In support of his finding in favour of the plaintiffs, the trial court has heavily relied on Ex. 100. It is a receipt executed on March 31, 1959 by Dattatraya in favour of first defendant. It acknowledges payment of Rs. 10,000/- by the first defendant to Dattatraya and his brother Krishnaji towards payment of sale consideration of Rs. 30,000/- for sale of the suit land in favour of first defendant. The recital in the receipt relied on by the trial court is this:"the land bearing S. No. 954 ... ... ... is our ancestral ownership .. we have received in all Rs. 7,000/- ... made up of the sum of Rs. 5,000/- .. and the sum of Rs. 2,000/-. Further your have this day given Rs. 1,000/- in cash and a cheque .. dated 15-4-1959 for rupees two thousand. Thus in all Rs. 10,000/- are received towards the transaction (agreement) in respect of the suit land. The receipt is given in writing." It is signed by Dattatraya for self and for Krishnaji.23. In this cross-examination the first defendant said in regard to this document."I ... demanded the receipt for Rupees 10,000/- when payment of Rs. 3,000/- was made. We demanded the receipt relating to the agreement of sale of the suit land. The writer of Ex. 100 was known to him. He was some account writer of Razak. Ex. 100 mentions that the land was ancestral land of defendants 2 and 3. On the basis of this writing the land was purchased at the time of compromise decree."24. The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from the cross-examination of the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in his cross-examination that he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put in cross-examination to the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of such cross-examination, we think it will be unfair to the first defendant to draw any adverse inference against him.
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the plaintiffs, did not speak about this motive. On the contrary, he admitted in histhat he had made "no inquiry about the purchase of suit land from mother." He further admitted that he "never questioned father why he purchased the suit land benami in the name of mother." So his evidence does not bear out the alleged motive. None of the plaintiffs have entered the witness box. Under the Hindu Law Sadashiv could claim maintenance from Laxman only from ancestral property in his hand. Sadashiv could not claim maintenance from anyproperty of Laxman. This legal position is not disputed by counsel for the appellants. But he says that Laxman could have hardly known the law. It is difficult to believe that Laxman was ignorant of the law. He was a petition writer. His occupation brought him in constant touch with lawyers and litigants. Accordingly, it is not improbable that he had acquired information that thisproperty was in no danger. So there was no reason why Laxman should have concealed the purchase of the suit land from Sadashiv.21. There is yet another important circumstances which discounts the suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from theof the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in histhat he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put into the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of suchwe think it will be unfair to the first defendant to draw any adverse inference againstthe trial court fell in error in relying on documents of dubious evidentiary value. The documents were, as already discussed, also consistent with the real ownership of Jankibai. So the trial court was wrong in thinking that it was reasonably probable that Laxman was the real owner of the suit land. In our view, the High Court has correctly appraised the entire evidence and has come to the right conclusion that the real owner of the suit land was Jankibai, and not Laxman.
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State Of Rajasthan Vs. Man Industrial Corporation Ltd | case is of the second variety.11. Counsel relied upon Patnaik and Co. v. State of Orissa, 1965-16 STC 364 = (AIR 1965 SC 1655 ) and Mckenzies Ltd. v. State of Maharashtra, 1965-16 STC 518 (SC). But in both these cases the Court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supply "motor-bus bodies" and the contract being one for sale of chattels, they were liable to pay sales-tax.12. Our attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics, 1965-16 STC 385 (Bom). In that case a firm of electrical contractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods such as wire, brass clips, wall brackets and tube lights with accessories. The assessees charged their customers consolidated rates for the materials consumed and labour involved in carrying out the contracts. The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts. It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separate contracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State, 1966-17 STC no (SC) discharged the answer recorded by the High Court, holding that the conclusions recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and "fixing" the materials and providing light points complete with 1/8 CTS wire, brass clips, tapes and all approved accessories. The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the invoice which was ambiguous.13. In State of Madras v. Richardson and Gurudas Ltd., 1968- 21 STC 245 (SC) the assessees without a formal contract agreed to supply, fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidated lump-sum payment of Rs. 1,160 per ton for fabricating, supplying and erecting at site all steel work etc.; there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees. This Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.14. Our attention was invited to a judgment of the Court of Appeal in Love v. Norman Wright (Builders) Ltd., 1944-l KB 484. In that case the respondents contracted with the Secretary of State for War to do the work and supply the materials mentioned in the Schedules to the contract, including the supply of blackout curtains, curtain rails and battens and their erection at a number of police stations. It was held by the Court of Appeal that the respondents were liable to pay purchase-tax. Reliance was placed upon the observations made by Goddard, L. J. at p. 484:"If one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the War Office."We do not think that these observations furnish a universal test that whenever there is a contract to "fix" certain articles made by a manufacturer the contract must be deemed one for sale and not of service. The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with installation are under a separate contract or are incidental to the execution of the contract of sale.15. In the present case, the specifications of the windows were set out in the contract. The primary undertaking of the respondent was not merely to supply the windows but to "fix" the windows.This service is not rendered under a separate contract, nor is the service shown to be rendered customarily or normally as incidental to the sale by the person who supplies window-leaves. The "fixing" of windows in the manners stipulated required special technical skill. If the windows were not properly "fixed", the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the "fixing" of the window-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. | 0[ds]8. The contract undertaken by the respondent was to prepare the windowleaves according to the specifications and to fix them to the building. There were not twoof sale and another of service. "Fixing" the windows to the building was also not incidental or subsidiary to the sale, but was an essential term of the contract. The windowleaves did not pass to the Union of India under the terms of the contract asOnly on the fixing of the windows as stipulated, the contract could be fully executed and the property in the windows passed on the completion of the work and not before.9. It was said by this Court in State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd.,STC 353=(AlR 1958 SC 560) that in a building contract which is one, entire and indivisible, there is no sale of goods. In the case of a building contract the property in materials used does not pass to the other party to the contract as movable property. In the absence of an agreement to the contrary, the materials in the construction of a building become the property of the other party to the contract only on the theory of accretion.10. In Government of Andhra Pradesh v. Guntur Tobaccos Ltd.,STC 240 = (AIR 1965 SC 1396 ) this Court pointed out (at p. 255 (of STC)) = (at p.1404 ofcontract for work in the execution of which goods are used may take one of three forms. The contract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price; it may be a contract for work in which the use of materials is accessory or incidental to the execution of the work; or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous. In the last class there is no sale because though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale ofcontract in question in this case is of the second variety.11. Counsel relied upon Patnaik and Co. v. State of Orissa,STC 364 = (AIR 1965 SC 1655 ) and Mckenzies Ltd. v. State of Maharashtra,STC 518 (SC). But in both these cases the Court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supplyOur attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics,STC 385 (Bom). In that case a firm of electrical contractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods such as wire, brass clips, wall brackets and tube lights with accessories. The assessees charged their customers consolidated rates for the materials consumed and labour involved in carrying out the contracts. The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts. It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separate contracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State,STC no (SC) discharged the answer recorded by the High Court, holding that the conclusions recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and "fixing" the materials and providing light points complete with 1/8 CTS wire, brass clips, tapes and all approved accessories. The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the invoice which was ambiguous.13. In State of Madras v. Richardson and Gurudas Ltd., 196821 STC 245 (SC) the assessees without a formal contract agreed to supply, fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidatedpayment of Rs. 1,160 per ton for fabricating, supplying and erecting at site all steel work etc.; there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees. This Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.14. Our attention was invited to a judgment of theCourt of Appeal in Love v. Norman Wright (Builders) Ltd.,In that case the respondents contracted with the Secretary of State for War to do the work and supply the materials mentioned in the Schedules to the contract, including the supply of blackout curtains, curtain rails and battens and their erection at a number of police stations. It was held by the Court of Appeal that the respondents were liable to payReliance was placed upon the observations made by Goddard, L. J. at p.one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the Wardo not think that these observations furnish a universal test that whenever there is a contract to "fix" certain articles made by a manufacturer the contract must be deemed one for sale and not of service. The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with installation are under a separate contract or are incidental to the execution of the contract of sale.15. In the present case, the specifications of the windows were set out in the contract. The primary undertaking of the respondent was not merely to supply the windows but to "fix" the windows.This service is not rendered under a separate contract, nor is the service shown to be rendered customarily or normally as incidental to the sale by the person who suppliesThe "fixing" of windows in the manners stipulated required special technical skill. If the windows were not properly "fixed", the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the "fixing" of theand when thehad become a part of the building construction that the property in the goods passed under the terms of the contract. | 0 | 3,166 | 1,487 | ### 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:
case is of the second variety.11. Counsel relied upon Patnaik and Co. v. State of Orissa, 1965-16 STC 364 = (AIR 1965 SC 1655 ) and Mckenzies Ltd. v. State of Maharashtra, 1965-16 STC 518 (SC). But in both these cases the Court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supply "motor-bus bodies" and the contract being one for sale of chattels, they were liable to pay sales-tax.12. Our attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics, 1965-16 STC 385 (Bom). In that case a firm of electrical contractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods such as wire, brass clips, wall brackets and tube lights with accessories. The assessees charged their customers consolidated rates for the materials consumed and labour involved in carrying out the contracts. The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts. It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separate contracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State, 1966-17 STC no (SC) discharged the answer recorded by the High Court, holding that the conclusions recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and "fixing" the materials and providing light points complete with 1/8 CTS wire, brass clips, tapes and all approved accessories. The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the invoice which was ambiguous.13. In State of Madras v. Richardson and Gurudas Ltd., 1968- 21 STC 245 (SC) the assessees without a formal contract agreed to supply, fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidated lump-sum payment of Rs. 1,160 per ton for fabricating, supplying and erecting at site all steel work etc.; there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees. This Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.14. Our attention was invited to a judgment of the Court of Appeal in Love v. Norman Wright (Builders) Ltd., 1944-l KB 484. In that case the respondents contracted with the Secretary of State for War to do the work and supply the materials mentioned in the Schedules to the contract, including the supply of blackout curtains, curtain rails and battens and their erection at a number of police stations. It was held by the Court of Appeal that the respondents were liable to pay purchase-tax. Reliance was placed upon the observations made by Goddard, L. J. at p. 484:"If one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the War Office."We do not think that these observations furnish a universal test that whenever there is a contract to "fix" certain articles made by a manufacturer the contract must be deemed one for sale and not of service. The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with installation are under a separate contract or are incidental to the execution of the contract of sale.15. In the present case, the specifications of the windows were set out in the contract. The primary undertaking of the respondent was not merely to supply the windows but to "fix" the windows.This service is not rendered under a separate contract, nor is the service shown to be rendered customarily or normally as incidental to the sale by the person who supplies window-leaves. The "fixing" of windows in the manners stipulated required special technical skill. If the windows were not properly "fixed", the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the "fixing" of the window-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract.
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0
### Explanation:
upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale ofcontract in question in this case is of the second variety.11. Counsel relied upon Patnaik and Co. v. State of Orissa,STC 364 = (AIR 1965 SC 1655 ) and Mckenzies Ltd. v. State of Maharashtra,STC 518 (SC). But in both these cases the Court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supplyOur attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics,STC 385 (Bom). In that case a firm of electrical contractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods such as wire, brass clips, wall brackets and tube lights with accessories. The assessees charged their customers consolidated rates for the materials consumed and labour involved in carrying out the contracts. The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts. It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separate contracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State,STC no (SC) discharged the answer recorded by the High Court, holding that the conclusions recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and "fixing" the materials and providing light points complete with 1/8 CTS wire, brass clips, tapes and all approved accessories. The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the invoice which was ambiguous.13. In State of Madras v. Richardson and Gurudas Ltd., 196821 STC 245 (SC) the assessees without a formal contract agreed to supply, fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidatedpayment of Rs. 1,160 per ton for fabricating, supplying and erecting at site all steel work etc.; there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees. This Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.14. Our attention was invited to a judgment of theCourt of Appeal in Love v. Norman Wright (Builders) Ltd.,In that case the respondents contracted with the Secretary of State for War to do the work and supply the materials mentioned in the Schedules to the contract, including the supply of blackout curtains, curtain rails and battens and their erection at a number of police stations. It was held by the Court of Appeal that the respondents were liable to payReliance was placed upon the observations made by Goddard, L. J. at p.one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the Wardo not think that these observations furnish a universal test that whenever there is a contract to "fix" certain articles made by a manufacturer the contract must be deemed one for sale and not of service. The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with installation are under a separate contract or are incidental to the execution of the contract of sale.15. In the present case, the specifications of the windows were set out in the contract. The primary undertaking of the respondent was not merely to supply the windows but to "fix" the windows.This service is not rendered under a separate contract, nor is the service shown to be rendered customarily or normally as incidental to the sale by the person who suppliesThe "fixing" of windows in the manners stipulated required special technical skill. If the windows were not properly "fixed", the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the "fixing" of theand when thehad become a part of the building construction that the property in the goods passed under the terms of the contract.
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Abhilash Vinodkumar Jain Vs. Cox & Kings (India) Ltd. | for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is punishable with fine which may extend to one thousand rupees. The fine under this sub-section is to be understood in the nature of compensation for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the Court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the Court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the Court to hand back the property to the company within the prescribed time liable for punishment. 16. The object of the Companies Act inter alia is to regulate the affairs of the companies including the control of the management and protection of the property of the company. The object of Section 630 of the Act has, thus, a direct nexus with the object of the Act. It is precisely for this reason that in Gokak Patel Volkarts case (1991 AIR SCW 505) (supra) this Court held the offence under Section 630, of the Act to be a continuing offence. 17. Section 630, of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an employee or an officer or a past employee or an officer or legal heirs and representatives deriving their colour and content from such an employee or officer in so far as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee, would render the holding of that property wrongful and actionable under Section 630, of the Act. To hold that the legal heirs would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the beneficent provision and ignore, the factual realities that the legal heirs or family members who are continuing in possession of the allotted property, had obtained the right of occupancy with the concerned employee in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right of possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630, of the Act manifested that it was conscious of the position that today in the corporate sector - private or public enterprise - the employees/officers are often provided residential accommodation by the employer for the use and occupation of the concerned employee during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them were to continue to hold the property belonging to the company, after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The Courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630, of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The heirs and legal representatives of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer, in the absence of any express agreement to the contrary entered with them by the employer. The Court, when approached by the employer for taking action under Section 630, of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the companys right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630, of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630, of the Act if it can be established that the concerned deceased employee had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision the Court must be forever alive to the principle that it is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud. 18. Thus, our answer to the question posed in the earlier part of this judgment is in the affirmative and we hold that a petition under Section 630, of the Act is maintainable against the legal heirs of the deceased officer/employee for retrieval of the companys property wrongfully withheld by them after the demise of the employee concerned. | 0[ds]11. Thus, it would be seen that this Court has consistently taken the view and repeatedly emphasised that the provisions of Section 630, of the Act have to be given purposive and wider interpretation and not restrictive interpretation. In the four cases referred to above, however, this Court was not required to directly consider and deal with the question whether the provisions of Section 630, of the Act can be invoked against the legal heirs, for wrongfully withholding the property of the company, on the death in harness of an employee or officer of the company to whom the property was allotted. In these two appeals that precisely is the issue which invites our attentionWe are in respectful agreement with the above view and are of the opinion that the legal representatives or the heirs of the deceased employee or officer would squarely fall within the ambit of Section 630, of the Act. To exclude them, by giving a restrictive interpretation to the provisions would defeat the very object of the provision which declares the wrongful withholding of the property of the company to be an offence. It is immaterial whether the wrongful withholding is done by the employee or the officer or the past employee or the past officer or the heirs of the deceased employee or the officer or anyone claiming their right of occupancy under such an employee or an officer. It cannot be ignored that the legal heirs or representatives in possession of the property had acquired the right of occupancy in the property of the company, by virtue of being family members of the employee or the officer during the employment of the officer or the employee and not on any independent account. They, therefore, derive their colour and content from the employee or the officer only and have no independent or personal right to hold on the property of the company. Once the right of the employee or the officer to retain the possession of the property, either on account of termination of services, retirement, resignation or death, gets extinguished, they (persons in occupation) are under an obligation to return the property back to the company and on their failure to do so, they render themselves liable to be dealt with under Section 630 of the Act for retrieval of the possession of the property14. Even though Section 630, of the Act falls in Part XIII of the Companies Act and provides for penal consequences for wrongful withholding of the property of the company, the provisions strictly speaking are not penal in the sense as understood under the penal law. The provisions are quasi-criminal. They have been enacted with the main object of providing speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or officer or an ex-employee or officer or anyone claiming under them. In our opinion, a proper construction of the Section would be that the term officer or employee of a company in Section 630, of the Act would by a deeming fiction include the legal heirs and representatives of the employee or the officer concerned continuing in occupation of the property of the company after the death of the employee or the officer15. Under sub-section(I), of Section 630, for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is punishable with fine which may extend to one thousand rupees. The fine under this sub-section is to be understood in the nature of compensation for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the Court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the Court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the Court to hand back the property to the company within the prescribed time liable for punishment16. The object of the Companies Act inter alia is to regulate the affairs of the companies including the control of the management and protection of the property of the company. The object of Section 630 of the Act has, thus, a direct nexus with the object of the Act. It is precisely for this reason that in Gokak Patel Volkarts case (1991 AIR SCW 505) (supra) this Court held the offence under Section 630, of the Act to be a continuing offence17. Section 630, of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an employee or an officer or a past employee or an officer or legal heirs and representatives deriving their colour and content from such an employee or officer in so far as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee, would render the holding of that property wrongful and actionable under Section 630, of the Act. To hold that the legal heirs would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the beneficent provision and ignore, the factual realities that the legal heirs or family members who are continuing in possession of the allotted property, had obtained the right of occupancy with the concerned employee in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right of possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630, of the Act manifested that it was conscious of the position that today in the corporate sector - private or public enterprise - the employees/officers are often provided residential accommodation by the employer for the use and occupation of the concerned employee during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them were to continue to hold the property belonging to the company, after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The Courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630, of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The heirs and legal representatives of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer, in the absence of any express agreement to the contrary entered with them by the employer. The Court, when approached by the employer for taking action under Section 630, of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the companys right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630, of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630, of the Act if it can be established that the concerned deceased employee had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision the Court must be forever alive to the principle that it is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud18. Thus, our answer to the question posed in the earlier part of this judgment is in the affirmative and we hold that a petition under Section 630, of the Act is maintainable against the legal heirs of the deceased officer/employee for retrieval of the companys property wrongfully withheld by them after the demise of the employee concerned. | 0 | 4,400 | 1,662 | ### 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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for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is punishable with fine which may extend to one thousand rupees. The fine under this sub-section is to be understood in the nature of compensation for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the Court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the Court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the Court to hand back the property to the company within the prescribed time liable for punishment. 16. The object of the Companies Act inter alia is to regulate the affairs of the companies including the control of the management and protection of the property of the company. The object of Section 630 of the Act has, thus, a direct nexus with the object of the Act. It is precisely for this reason that in Gokak Patel Volkarts case (1991 AIR SCW 505) (supra) this Court held the offence under Section 630, of the Act to be a continuing offence. 17. Section 630, of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an employee or an officer or a past employee or an officer or legal heirs and representatives deriving their colour and content from such an employee or officer in so far as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee, would render the holding of that property wrongful and actionable under Section 630, of the Act. To hold that the legal heirs would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the beneficent provision and ignore, the factual realities that the legal heirs or family members who are continuing in possession of the allotted property, had obtained the right of occupancy with the concerned employee in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right of possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630, of the Act manifested that it was conscious of the position that today in the corporate sector - private or public enterprise - the employees/officers are often provided residential accommodation by the employer for the use and occupation of the concerned employee during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them were to continue to hold the property belonging to the company, after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The Courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630, of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The heirs and legal representatives of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer, in the absence of any express agreement to the contrary entered with them by the employer. The Court, when approached by the employer for taking action under Section 630, of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the companys right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630, of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630, of the Act if it can be established that the concerned deceased employee had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision the Court must be forever alive to the principle that it is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud. 18. Thus, our answer to the question posed in the earlier part of this judgment is in the affirmative and we hold that a petition under Section 630, of the Act is maintainable against the legal heirs of the deceased officer/employee for retrieval of the companys property wrongfully withheld by them after the demise of the employee concerned.
### Response:
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### Explanation:
of Section 630, for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is punishable with fine which may extend to one thousand rupees. The fine under this sub-section is to be understood in the nature of compensation for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the Court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the Court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the Court to hand back the property to the company within the prescribed time liable for punishment16. The object of the Companies Act inter alia is to regulate the affairs of the companies including the control of the management and protection of the property of the company. The object of Section 630 of the Act has, thus, a direct nexus with the object of the Act. It is precisely for this reason that in Gokak Patel Volkarts case (1991 AIR SCW 505) (supra) this Court held the offence under Section 630, of the Act to be a continuing offence17. Section 630, of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an employee or an officer or a past employee or an officer or legal heirs and representatives deriving their colour and content from such an employee or officer in so far as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee, would render the holding of that property wrongful and actionable under Section 630, of the Act. To hold that the legal heirs would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the beneficent provision and ignore, the factual realities that the legal heirs or family members who are continuing in possession of the allotted property, had obtained the right of occupancy with the concerned employee in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right of possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630, of the Act manifested that it was conscious of the position that today in the corporate sector - private or public enterprise - the employees/officers are often provided residential accommodation by the employer for the use and occupation of the concerned employee during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them were to continue to hold the property belonging to the company, after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The Courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630, of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The heirs and legal representatives of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer, in the absence of any express agreement to the contrary entered with them by the employer. The Court, when approached by the employer for taking action under Section 630, of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the companys right to retrieve its property is quite explicit and the stand of the employee, or any one claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630, of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630, of the Act if it can be established that the concerned deceased employee had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision the Court must be forever alive to the principle that it is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud18. Thus, our answer to the question posed in the earlier part of this judgment is in the affirmative and we hold that a petition under Section 630, of the Act is maintainable against the legal heirs of the deceased officer/employee for retrieval of the companys property wrongfully withheld by them after the demise of the employee concerned.
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Badri Pershad Vs. Smt. Kanso Devi | S. 14 (1) of the Act even though previously she was a limited a owner.4. Under section 3 (1) of Act XVIII of 1937 as amended by Act XI of 1938 when a Hindu governed by any School of Hindu law other than the Dayabhaga School died intestate leaving separate property his widow was entitled to the same share as a son in respect of the property left by her husband. Under section 3 (2) when any such Hindu died having at the time of his death an interest in a Hindu Joint Family property his widow was to have the same interest in the property as he himself had. Sub-s. (3) provided that any interest developing on a Hindu widow under the aforesaid provision was to be a limited interest known as Hindu womans estate but that the widow was to have the same right of claiming partition as a male owner.5. The case in the Courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisition. It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal shares in the properties left by him.6. The point for our consideration is narrowed down to this. When a female acquires an interest under the provisions of Act XVIII of 1937 in the properties of her husband which are subsequently separated by means of a partition does she become an absolute owner under sub-s. (1) of S. 14 of the Act or does she get only a restricted estate under sub-s. (1) of S. 14 of the Act or does she get only a restricted estate under sub-s. (2) of that section? The contention of the learned counsel for the appellant is that the court should first look at sub-s. (2) and if the case does not fall within its ambit and scope then alone sub-s. (1) will become applicable. This manner of reading of the section is not warranted either on principle or authority.The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or sub-s. (2). The critical words in sub-s. (1) are "possessed" and "acquired". The word "possessed" has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law.In the context in which it has been used in S. 14 it means the estate (state - Ed.) of owning or having in ones hand or power (see Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, (1959) Supp 1 SCR 968 = (AIR 1959 SC 577 ).) In S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp 3 SCR 418 = (AIR 1962 SC 1493 ) it was held that 1/4 share of a female which had been declared by the preliminary decree passed before the enactment of the Act was possessed by her within the meaning of S. 14 and she became the full owner so that on her death the said property descended to her grandsons in accordance with the provisions of Ss. 15 and 16 of the Act.The word "acquired" in sub-s. (1) has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes sub-s. (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a females own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement.7. Sub-section (2) Section 14 is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.The Madras High Court was right in the observations made in Rangaswami Naicker v. Chinnammal, AIR 1964 Mad 387 that sub-section (2) made it clear that the object of Section 14 was only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees etc., by virtue of which a womans right was restricted. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ), one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukum Singh had under the provisions of Act XVIII of 1937. The question arose, whether after the coming into force of the Act she got rights, of full ownership and could alienate the properties in which she had acquired a limited interest without the consent of the male members of the family. This court decided that she had become full owner by virtue of the provisions of S. 14 (1) of the Act. This case is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force. The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub-s. (2) as the provisions of sub-s. (1) became fully applicable particularly in view of the express terms of the Explanation. | 0[ds]5. The case in the Courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisition. It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal shares in the properties left bymanner of reading of the section is not warranted either on principle or authority.The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or sub-s. (2). The critical words in sub-s. (1) are "possessed" and "acquired". The word "possessed" has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law.In the context in which it has been used in S. 14 it means the estate (state - Ed.) of owning or having in ones hand orat the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before itsword "acquired" in sub-s. (1) has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes sub-s. (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a females own skill or exertion or by purchase or prescription or in any manner whatsoever.Sub-section (2) Section 14 is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of thecase is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force. The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub-s. (2) as the provisions of sub-s. (1) became fully applicable particularly in view of the express terms of the Explanation. | 0 | 1,991 | 483 | ### 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:
S. 14 (1) of the Act even though previously she was a limited a owner.4. Under section 3 (1) of Act XVIII of 1937 as amended by Act XI of 1938 when a Hindu governed by any School of Hindu law other than the Dayabhaga School died intestate leaving separate property his widow was entitled to the same share as a son in respect of the property left by her husband. Under section 3 (2) when any such Hindu died having at the time of his death an interest in a Hindu Joint Family property his widow was to have the same interest in the property as he himself had. Sub-s. (3) provided that any interest developing on a Hindu widow under the aforesaid provision was to be a limited interest known as Hindu womans estate but that the widow was to have the same right of claiming partition as a male owner.5. The case in the Courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisition. It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal shares in the properties left by him.6. The point for our consideration is narrowed down to this. When a female acquires an interest under the provisions of Act XVIII of 1937 in the properties of her husband which are subsequently separated by means of a partition does she become an absolute owner under sub-s. (1) of S. 14 of the Act or does she get only a restricted estate under sub-s. (1) of S. 14 of the Act or does she get only a restricted estate under sub-s. (2) of that section? The contention of the learned counsel for the appellant is that the court should first look at sub-s. (2) and if the case does not fall within its ambit and scope then alone sub-s. (1) will become applicable. This manner of reading of the section is not warranted either on principle or authority.The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or sub-s. (2). The critical words in sub-s. (1) are "possessed" and "acquired". The word "possessed" has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law.In the context in which it has been used in S. 14 it means the estate (state - Ed.) of owning or having in ones hand or power (see Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, (1959) Supp 1 SCR 968 = (AIR 1959 SC 577 ).) In S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp 3 SCR 418 = (AIR 1962 SC 1493 ) it was held that 1/4 share of a female which had been declared by the preliminary decree passed before the enactment of the Act was possessed by her within the meaning of S. 14 and she became the full owner so that on her death the said property descended to her grandsons in accordance with the provisions of Ss. 15 and 16 of the Act.The word "acquired" in sub-s. (1) has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes sub-s. (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a females own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement.7. Sub-section (2) Section 14 is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.The Madras High Court was right in the observations made in Rangaswami Naicker v. Chinnammal, AIR 1964 Mad 387 that sub-section (2) made it clear that the object of Section 14 was only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees etc., by virtue of which a womans right was restricted. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365 ), one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukum Singh had under the provisions of Act XVIII of 1937. The question arose, whether after the coming into force of the Act she got rights, of full ownership and could alienate the properties in which she had acquired a limited interest without the consent of the male members of the family. This court decided that she had become full owner by virtue of the provisions of S. 14 (1) of the Act. This case is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force. The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub-s. (2) as the provisions of sub-s. (1) became fully applicable particularly in view of the express terms of the Explanation.
### Response:
0
### Explanation:
5. The case in the Courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisition. It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal shares in the properties left bymanner of reading of the section is not warranted either on principle or authority.The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or sub-s. (2). The critical words in sub-s. (1) are "possessed" and "acquired". The word "possessed" has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law.In the context in which it has been used in S. 14 it means the estate (state - Ed.) of owning or having in ones hand orat the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before itsword "acquired" in sub-s. (1) has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes sub-s. (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a females own skill or exertion or by purchase or prescription or in any manner whatsoever.Sub-section (2) Section 14 is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of thecase is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force. The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub-s. (2) as the provisions of sub-s. (1) became fully applicable particularly in view of the express terms of the Explanation.
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Krishan Vs. State Of Haryana | the benefit of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. The High Court, therefore, referred the matter to the Juvenile Justice Board to find out whether on the day of incident, the appellant was or not. The High Court clarified that in case the Juvenile Justice Board came to the conclusion that the appellant was a juvenile, he would be dealt with those provisions, otherwise, he would undergo the sentence awarded by the Trial Court.11. The Juvenile Justice Board, Faridabad considered the case of the accused appellant and reached to the conclusion that the accused had failed to prove with proper documentary evidence that he was a juvenile on the date of occurrence and accordingly declined his plea to be a juvenile.12. Aggrieved by the order passed by the learned Single Judge of the High Court, the appellant approached this Court by this appeal. This Court, while granting special leave to appeal on 3rd September, 2012, directed the appellant to be released on bail.13. Before us, it is strenuously contended by the counsel for the appellant that the Courts below have failed to appreciate the defence of the appellant who was falsely implicated in the case. An effort has been made to satisfy this Court that there was strong motive of the prosecutirx to implicate the appellant. It was on account of the altercation that took place when the appellant party brought to the notice of the father of prosecutrix about her illicit relationship with some boys, the prosecutrix warned the appellant that she will take revenge by implicating him in a false case. He also submitted that the Courts below have erred in relying on the statement of prosecutrix that the appellant pushed her twice, gagged her mouth and dragged her holding both hands on the dry field of the Arhar and forcibly committed rape. He submitted that when such a forcible assault is committed on a girl, one would expect some sort of injury on any part of her body, but the prosecution story is totally concocted as it is unbelievable that in spite of all the alleged forcible rape, the victim did not sustain any injury and it is evident from her Medical Report that there was no external mark of injury anywhere on her body.14. Learned counsel finally contended that there were several anomalies and improvements in the evidence, no corroboration of certain important statements of victim with the medical evidence and the prosecution has failed to prove its case beyond reasonable doubt. Despite all this, the Trial Court as well as the High Court went on convicting and sentencing the appellant and hence the impugned judgment has to be set aside. 15. Learned counsel for the respondent—State, on the other hand, supported the views taken by the Courts below and submitted that there is no iota of doubt in coming to the conclusion that the appellant has committed the grievous offence, and he is rightly punished by the Courts below.16. The two grounds on which learned counsel for the appellant laid stress to show that there is no offence committed by the accused are (i) the medical evidence, and (ii) false implication by the prosecutrix. To appreciate his contention, we have perused the evidence of Dr. Meenu Kapoor—PW 8, who relying upon the report of the Chemical Examiner (Ext. PJ) stated that human semen was detected on the underwear of the victim. In addition to this, as per the evidence of Dr. Sudhir Khurana, PW 2 (Ext. PA), there were bone injuries on the right forearm, swelling and contusion both on the left hand and right shoulder and abraded contusion of the right leg of the accused. The Doctor opined that these injuries were caused within a duration of 24 to 72 hours. All these injuries indubitably support the version of the prosecutrix—victim who stated that in the scuffle, she had bitten the accused. In addition to this, the Doctor—PW 2 also stated that he found nothing which suggests that the accused could not perform sexual intercourse. The further contention of the counsel to rule out rape by the accused, that the prosecutrix is habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body, also cannot help. It is not expected that every rape victim should have injuries on her body to prove her case. The findings of the medical experts clearly established that there was a rape committed against the victim. The other ground taken by the counsel is that the prosecutrix has falsely implicated the appellant as his father (DW 1) has complained to her father that she was roaming around with the company of some boys and hence she has threatened that she will implicate the appellant falsely to take revenge for complaining against her, but this plea has also no basis. To prove this fact, the counsel has relied upon the only circumstance that after the arrest of the accused, his father (DW 1) made a complaint to the Superintendent of Police about the false implication of his son which was signed by two villagers, namely, Mahender Lumberdar and mamchand Balmiki. However, there is no corroborative evidence on record to establish this fact and even the said two persons have not been examined. 17. A further submission made by the counsel for the appellant is that after the alleged occurrence, the girl straightaway went to her house and only thereafter she went to the police station to lodge the complaint and hence the story of rape cannot be believed. We find nothing unusual in this, one cannot expect every rape victim to straightaway go to police station and lodge complaint. 18. Taking into consideration the totality of circumstances and on appreciation of entire evidence, supported by the Doctors’ opinion and chemical examination report, in our considered opinion, there is nothing to disbelieve the prosecution story that the appellant had committed the offences of rape and criminal intimidation. | 0[ds]All these injuries indubitably support the version of the prosecutrix—victim who stated that in the scuffle, she had bitten the accused. In addition to this, the Doctor—PW 2 also stated that he found nothing which suggests that the accused could not perform sexual intercourse. The further contention of the counsel to rule out rape by the accused, that the prosecutrix is habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body, also cannot help. It is not expected that every rape victim should have injuries on her body to prove her case. The findings of the medical experts clearly established that there was a rape committed against the victim. The other ground taken by the counsel is that the prosecutrix has falsely implicated the appellant as his father (DW 1) has complained to her father that she was roaming around with the company of some boys and hence she has threatened that she will implicate the appellant falsely to take revenge for complaining against her, but this plea has also no basis. To prove this fact, the counsel has relied upon the only circumstance that after the arrest of the accused, his father (DW 1) made a complaint to the Superintendent of Police about the false implication of his son which was signed by two villagers, namely, Mahender Lumberdar and mamchand Balmiki. However, there is no corroborative evidence on record to establish this fact and even the said two persons have not beenfind nothing unusual in this, one cannot expect every rape victim to straightaway go to police station and lodge complaint.Taking into consideration the totality of circumstances and on appreciation of entire evidence, supported by theopinion and chemical examination report, in our considered opinion, there is nothing to disbelieve the prosecution story that the appellant had committed the offences of rape and criminal intimidation | 0 | 1,891 | 345 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the benefit of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. The High Court, therefore, referred the matter to the Juvenile Justice Board to find out whether on the day of incident, the appellant was or not. The High Court clarified that in case the Juvenile Justice Board came to the conclusion that the appellant was a juvenile, he would be dealt with those provisions, otherwise, he would undergo the sentence awarded by the Trial Court.11. The Juvenile Justice Board, Faridabad considered the case of the accused appellant and reached to the conclusion that the accused had failed to prove with proper documentary evidence that he was a juvenile on the date of occurrence and accordingly declined his plea to be a juvenile.12. Aggrieved by the order passed by the learned Single Judge of the High Court, the appellant approached this Court by this appeal. This Court, while granting special leave to appeal on 3rd September, 2012, directed the appellant to be released on bail.13. Before us, it is strenuously contended by the counsel for the appellant that the Courts below have failed to appreciate the defence of the appellant who was falsely implicated in the case. An effort has been made to satisfy this Court that there was strong motive of the prosecutirx to implicate the appellant. It was on account of the altercation that took place when the appellant party brought to the notice of the father of prosecutrix about her illicit relationship with some boys, the prosecutrix warned the appellant that she will take revenge by implicating him in a false case. He also submitted that the Courts below have erred in relying on the statement of prosecutrix that the appellant pushed her twice, gagged her mouth and dragged her holding both hands on the dry field of the Arhar and forcibly committed rape. He submitted that when such a forcible assault is committed on a girl, one would expect some sort of injury on any part of her body, but the prosecution story is totally concocted as it is unbelievable that in spite of all the alleged forcible rape, the victim did not sustain any injury and it is evident from her Medical Report that there was no external mark of injury anywhere on her body.14. Learned counsel finally contended that there were several anomalies and improvements in the evidence, no corroboration of certain important statements of victim with the medical evidence and the prosecution has failed to prove its case beyond reasonable doubt. Despite all this, the Trial Court as well as the High Court went on convicting and sentencing the appellant and hence the impugned judgment has to be set aside. 15. Learned counsel for the respondent—State, on the other hand, supported the views taken by the Courts below and submitted that there is no iota of doubt in coming to the conclusion that the appellant has committed the grievous offence, and he is rightly punished by the Courts below.16. The two grounds on which learned counsel for the appellant laid stress to show that there is no offence committed by the accused are (i) the medical evidence, and (ii) false implication by the prosecutrix. To appreciate his contention, we have perused the evidence of Dr. Meenu Kapoor—PW 8, who relying upon the report of the Chemical Examiner (Ext. PJ) stated that human semen was detected on the underwear of the victim. In addition to this, as per the evidence of Dr. Sudhir Khurana, PW 2 (Ext. PA), there were bone injuries on the right forearm, swelling and contusion both on the left hand and right shoulder and abraded contusion of the right leg of the accused. The Doctor opined that these injuries were caused within a duration of 24 to 72 hours. All these injuries indubitably support the version of the prosecutrix—victim who stated that in the scuffle, she had bitten the accused. In addition to this, the Doctor—PW 2 also stated that he found nothing which suggests that the accused could not perform sexual intercourse. The further contention of the counsel to rule out rape by the accused, that the prosecutrix is habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body, also cannot help. It is not expected that every rape victim should have injuries on her body to prove her case. The findings of the medical experts clearly established that there was a rape committed against the victim. The other ground taken by the counsel is that the prosecutrix has falsely implicated the appellant as his father (DW 1) has complained to her father that she was roaming around with the company of some boys and hence she has threatened that she will implicate the appellant falsely to take revenge for complaining against her, but this plea has also no basis. To prove this fact, the counsel has relied upon the only circumstance that after the arrest of the accused, his father (DW 1) made a complaint to the Superintendent of Police about the false implication of his son which was signed by two villagers, namely, Mahender Lumberdar and mamchand Balmiki. However, there is no corroborative evidence on record to establish this fact and even the said two persons have not been examined. 17. A further submission made by the counsel for the appellant is that after the alleged occurrence, the girl straightaway went to her house and only thereafter she went to the police station to lodge the complaint and hence the story of rape cannot be believed. We find nothing unusual in this, one cannot expect every rape victim to straightaway go to police station and lodge complaint. 18. Taking into consideration the totality of circumstances and on appreciation of entire evidence, supported by the Doctors’ opinion and chemical examination report, in our considered opinion, there is nothing to disbelieve the prosecution story that the appellant had committed the offences of rape and criminal intimidation.
### Response:
0
### Explanation:
All these injuries indubitably support the version of the prosecutrix—victim who stated that in the scuffle, she had bitten the accused. In addition to this, the Doctor—PW 2 also stated that he found nothing which suggests that the accused could not perform sexual intercourse. The further contention of the counsel to rule out rape by the accused, that the prosecutrix is habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body, also cannot help. It is not expected that every rape victim should have injuries on her body to prove her case. The findings of the medical experts clearly established that there was a rape committed against the victim. The other ground taken by the counsel is that the prosecutrix has falsely implicated the appellant as his father (DW 1) has complained to her father that she was roaming around with the company of some boys and hence she has threatened that she will implicate the appellant falsely to take revenge for complaining against her, but this plea has also no basis. To prove this fact, the counsel has relied upon the only circumstance that after the arrest of the accused, his father (DW 1) made a complaint to the Superintendent of Police about the false implication of his son which was signed by two villagers, namely, Mahender Lumberdar and mamchand Balmiki. However, there is no corroborative evidence on record to establish this fact and even the said two persons have not beenfind nothing unusual in this, one cannot expect every rape victim to straightaway go to police station and lodge complaint.Taking into consideration the totality of circumstances and on appreciation of entire evidence, supported by theopinion and chemical examination report, in our considered opinion, there is nothing to disbelieve the prosecution story that the appellant had committed the offences of rape and criminal intimidation
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Nathmal Vs. The State of Rajasthan & Others | and order of detention were passed against the petitioners male fide.7. We think that the order of detention made against the petitioners are not fit to be sustained in the eye of law. The Rajasthan (Display of Prices of Essential Commodities) Order was promulgated in the year 1966. According to the order as originally made only a price list had to be display at the business premises. By an amendment made on December 8, 1971, the requirement of display of stock list also became obligatory. With reference to ground No. 1 it would have been difficult to take the view that mere recovery of the quantities of certain articles mentioned in that ground from the premises of the petitioners without there being may allegation of violation of any law other than the order of 1966 would be sufficient to lead to the conclusion that the petitioners had acted in any manner prejudicial to the maintenance of supplies of essential commodities. In that event one could say that there was no nexus between the ground and the order of detention. The Rajasthan (Display of Prices of Essential Commodities) Order, 1966 made it imperative for the petitioner to display price and stock list so that persons going for purchase may know the correct stock position and the price. But, if the shop was not open on the day under consideration the petitioners could not be expected to display the prices or stock list on that day. In so far as it was assumed to be open an extraneous consideration had entered into the case. If it was assumed that ground No. 1 existed when in fact, it obviously did not this ground was vitiated. Thus defect was sufficient to vitiate the whole detention order for introduction of an extraneous non-existent ground.8. As regards recovery of many drugs from the petitioners premises as mentioned in ground No. 2 it was presumed that they were kept for the purpose of sale without a licence in violation of the Drugs and Cosmetics Act, 1940. In neither of the ground, however, it was alleged that the petitioners had refused to sell any of the articles to any of the customers. Even assuming that the violation of the law coupled with recoveries of large quantities of essential commodities and medicines could lead to the inference that the petitioners intended to hold them for profiteering yet one thing is plain. On the special facts and in the circumstances of this case we find no clear averment that the petitioners shop was open for transacting any business. In the background of the event of demolition of thadies followed by deputation to the District Magistrate it is quite legitimate to assume that the petitioners case that there was a strike on June 29, 1974, is correct. We do not accept their case that shop below Dr. Taks residence was not theirs but of their father. But in absence of a specific denial in the further affidavit filed on behalf of the District Magistrate in reply to the petitioners rejoinder we believe that their shop was not open for transacting any business. Whether the petitioners were, otherwise, justified in closing their shop or not surely they were not expected to display the price and stock list in the shop when as a protest to the demolition of their thadi they had gone on strike and had refused to transact any business in the shop. The search of the petitioners premises was in such a close juzta position of the demolition of their thadi that the whole conspectus of events does not leave a happy impression in our minds as to the justifiability and legality of the detention orders made against the petitioners. It appears to us that the power of detention was not exercised in this case in a fair, proper and legal manner. On the particular facts of this case, even though the satisfaction of the detaining authority was to be subjective under the law, it seems to us that extraneous factors introduced an infirmity which can justify the Courts interference with the order of detention.9. Strong reliance was placed on behalf of the respondent upon the decision of this Court in Kamla Prasad v. D. M., Saran ((1975) 1 SCC 314 : 1975 SCC (Cri) 141) to which one of us (Untwalia, J.) was a party. It will be noticed from the facts of that case that grounds in effect stated that the petitioner had hoarded and concealed the essential commodities in his business premises as also in his residential house and that he did not display the stock position in his business premises and further when the customers wanted to purchase soaps and matchboxes he refused to sell them saying that he had no stock. In such a situation it was alleged that the petitioner had hoarded the stock with the intention of selling them in blackmarket with a view to make undue profit. It is no doubt true that in paragraph 6 of the judgment it is said that from the mere fact that the petitioner did not display the stock of matchboxes and soaps in the business premises the only possible conclusion was that he was hoarding the stock for the purpose of selling it in blackmarket and thus make undue profit. But the said dictum had to be appreciated in the background of the entire facts of Kamla Prasads case (supra). The refusal to sell to the customers clearly showed that even though the business was being carried on in the premises the stock position was not displayed. On the other hand, on the fact of this case, we are not satisfied that there was failure on the part of the petitioners to display the price and stock list in their shop or that it could lead to the conclusion that their intention necessary was to hoard the good and do any blackmarketing or profiteering. No instance of any sale at blackmarket rates was given. | 1[ds]8. As regards recovery of many drugs from the petitioners premises as mentioned in ground No. 2 it was presumed that they were kept for the purpose of sale without a licence in violation of the Drugs and Cosmetics Act, 1940. In neither of the ground, however, it was alleged that the petitioners had refused to sell any of the articles to any of the customers. Even assuming that the violation of the law coupled with recoveries of large quantities of essential commodities and medicines could lead to the inference that the petitioners intended to hold them for profiteering yet one thing is plain. On the special facts and in the circumstances of this case we find no clear averment that the petitioners shop was open for transacting any business. In the background of the event of demolition of thadies followed by deputation to the District Magistrate it is quite legitimate to assume that the petitioners case that there was a strike on June 29, 1974, is correct. We do not accept their case that shop below Dr. Taks residence was not theirs but of their father. But in absence of a specific denial in the further affidavit filed on behalf of the District Magistrate in reply to the petitioners rejoinder we believe that their shop was not open for transacting any business. Whether the petitioners were, otherwise, justified in closing their shop or not surely they were not expected to display the price and stock list in the shop when as a protest to the demolition of their thadi they had gone on strike and had refused to transact any business in the shop. The search of the petitioners premises was in such a close juzta position of the demolition of their thadi that the whole conspectus of events does not leave a happy impression in our minds as to the justifiability and legality of the detention orders made against the petitioners. It appears to us that the power of detention was not exercised in this case in a fair, proper and legal manner. On the particular facts of this case, even though the satisfaction of the detaining authority was to be subjective under the law, it seems to us that extraneous factors introduced an infirmity which can justify the Courts interference with the order ofwill be noticed from the facts of that case that grounds in effect stated that the petitioner had hoarded and concealed the essential commodities in his business premises as also in his residential house and that he did not display the stock position in his business premises and further when the customers wanted to purchase soaps and matchboxes he refused to sell them saying that he had no stock. In such a situation it was alleged that the petitioner had hoarded the stock with the intention of selling them in blackmarket with a view to make undue profit. It is no doubt true that in paragraph 6 of the judgment it is said that from the mere fact that the petitioner did not display the stock of matchboxes and soaps in the business premises the only possible conclusion was that he was hoarding the stock for the purpose of selling it in blackmarket and thus make undue profit. But the said dictum had to be appreciated in the background of the entire facts of Kamla Prasads case (supra). The refusal to sell to the customers clearly showed that even though the business was being carried on in the premises the stock position was not displayed. On the other hand, on the fact of this case, we are not satisfied that there was failure on the part of the petitioners to display the price and stock list in their shop or that it could lead to the conclusion that their intention necessary was to hoard the good and do any blackmarketing or profiteering. No instance of any sale at blackmarket rates was given. | 1 | 2,510 | 695 | ### Instruction:
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and order of detention were passed against the petitioners male fide.7. We think that the order of detention made against the petitioners are not fit to be sustained in the eye of law. The Rajasthan (Display of Prices of Essential Commodities) Order was promulgated in the year 1966. According to the order as originally made only a price list had to be display at the business premises. By an amendment made on December 8, 1971, the requirement of display of stock list also became obligatory. With reference to ground No. 1 it would have been difficult to take the view that mere recovery of the quantities of certain articles mentioned in that ground from the premises of the petitioners without there being may allegation of violation of any law other than the order of 1966 would be sufficient to lead to the conclusion that the petitioners had acted in any manner prejudicial to the maintenance of supplies of essential commodities. In that event one could say that there was no nexus between the ground and the order of detention. The Rajasthan (Display of Prices of Essential Commodities) Order, 1966 made it imperative for the petitioner to display price and stock list so that persons going for purchase may know the correct stock position and the price. But, if the shop was not open on the day under consideration the petitioners could not be expected to display the prices or stock list on that day. In so far as it was assumed to be open an extraneous consideration had entered into the case. If it was assumed that ground No. 1 existed when in fact, it obviously did not this ground was vitiated. Thus defect was sufficient to vitiate the whole detention order for introduction of an extraneous non-existent ground.8. As regards recovery of many drugs from the petitioners premises as mentioned in ground No. 2 it was presumed that they were kept for the purpose of sale without a licence in violation of the Drugs and Cosmetics Act, 1940. In neither of the ground, however, it was alleged that the petitioners had refused to sell any of the articles to any of the customers. Even assuming that the violation of the law coupled with recoveries of large quantities of essential commodities and medicines could lead to the inference that the petitioners intended to hold them for profiteering yet one thing is plain. On the special facts and in the circumstances of this case we find no clear averment that the petitioners shop was open for transacting any business. In the background of the event of demolition of thadies followed by deputation to the District Magistrate it is quite legitimate to assume that the petitioners case that there was a strike on June 29, 1974, is correct. We do not accept their case that shop below Dr. Taks residence was not theirs but of their father. But in absence of a specific denial in the further affidavit filed on behalf of the District Magistrate in reply to the petitioners rejoinder we believe that their shop was not open for transacting any business. Whether the petitioners were, otherwise, justified in closing their shop or not surely they were not expected to display the price and stock list in the shop when as a protest to the demolition of their thadi they had gone on strike and had refused to transact any business in the shop. The search of the petitioners premises was in such a close juzta position of the demolition of their thadi that the whole conspectus of events does not leave a happy impression in our minds as to the justifiability and legality of the detention orders made against the petitioners. It appears to us that the power of detention was not exercised in this case in a fair, proper and legal manner. On the particular facts of this case, even though the satisfaction of the detaining authority was to be subjective under the law, it seems to us that extraneous factors introduced an infirmity which can justify the Courts interference with the order of detention.9. Strong reliance was placed on behalf of the respondent upon the decision of this Court in Kamla Prasad v. D. M., Saran ((1975) 1 SCC 314 : 1975 SCC (Cri) 141) to which one of us (Untwalia, J.) was a party. It will be noticed from the facts of that case that grounds in effect stated that the petitioner had hoarded and concealed the essential commodities in his business premises as also in his residential house and that he did not display the stock position in his business premises and further when the customers wanted to purchase soaps and matchboxes he refused to sell them saying that he had no stock. In such a situation it was alleged that the petitioner had hoarded the stock with the intention of selling them in blackmarket with a view to make undue profit. It is no doubt true that in paragraph 6 of the judgment it is said that from the mere fact that the petitioner did not display the stock of matchboxes and soaps in the business premises the only possible conclusion was that he was hoarding the stock for the purpose of selling it in blackmarket and thus make undue profit. But the said dictum had to be appreciated in the background of the entire facts of Kamla Prasads case (supra). The refusal to sell to the customers clearly showed that even though the business was being carried on in the premises the stock position was not displayed. On the other hand, on the fact of this case, we are not satisfied that there was failure on the part of the petitioners to display the price and stock list in their shop or that it could lead to the conclusion that their intention necessary was to hoard the good and do any blackmarketing or profiteering. No instance of any sale at blackmarket rates was given.
### Response:
1
### Explanation:
8. As regards recovery of many drugs from the petitioners premises as mentioned in ground No. 2 it was presumed that they were kept for the purpose of sale without a licence in violation of the Drugs and Cosmetics Act, 1940. In neither of the ground, however, it was alleged that the petitioners had refused to sell any of the articles to any of the customers. Even assuming that the violation of the law coupled with recoveries of large quantities of essential commodities and medicines could lead to the inference that the petitioners intended to hold them for profiteering yet one thing is plain. On the special facts and in the circumstances of this case we find no clear averment that the petitioners shop was open for transacting any business. In the background of the event of demolition of thadies followed by deputation to the District Magistrate it is quite legitimate to assume that the petitioners case that there was a strike on June 29, 1974, is correct. We do not accept their case that shop below Dr. Taks residence was not theirs but of their father. But in absence of a specific denial in the further affidavit filed on behalf of the District Magistrate in reply to the petitioners rejoinder we believe that their shop was not open for transacting any business. Whether the petitioners were, otherwise, justified in closing their shop or not surely they were not expected to display the price and stock list in the shop when as a protest to the demolition of their thadi they had gone on strike and had refused to transact any business in the shop. The search of the petitioners premises was in such a close juzta position of the demolition of their thadi that the whole conspectus of events does not leave a happy impression in our minds as to the justifiability and legality of the detention orders made against the petitioners. It appears to us that the power of detention was not exercised in this case in a fair, proper and legal manner. On the particular facts of this case, even though the satisfaction of the detaining authority was to be subjective under the law, it seems to us that extraneous factors introduced an infirmity which can justify the Courts interference with the order ofwill be noticed from the facts of that case that grounds in effect stated that the petitioner had hoarded and concealed the essential commodities in his business premises as also in his residential house and that he did not display the stock position in his business premises and further when the customers wanted to purchase soaps and matchboxes he refused to sell them saying that he had no stock. In such a situation it was alleged that the petitioner had hoarded the stock with the intention of selling them in blackmarket with a view to make undue profit. It is no doubt true that in paragraph 6 of the judgment it is said that from the mere fact that the petitioner did not display the stock of matchboxes and soaps in the business premises the only possible conclusion was that he was hoarding the stock for the purpose of selling it in blackmarket and thus make undue profit. But the said dictum had to be appreciated in the background of the entire facts of Kamla Prasads case (supra). The refusal to sell to the customers clearly showed that even though the business was being carried on in the premises the stock position was not displayed. On the other hand, on the fact of this case, we are not satisfied that there was failure on the part of the petitioners to display the price and stock list in their shop or that it could lead to the conclusion that their intention necessary was to hoard the good and do any blackmarketing or profiteering. No instance of any sale at blackmarket rates was given.
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Mohan Singh Malhi Vs. State Of Punjab | retire an employee on or after he attains the age of 55 years by giving him three months salary and allowances in lieu of three months notice.2. The facts giving rise to the appeal lie in a short compass and may be stated thus;Before the partition of the country, the appellant joined the Veterinary Department of the Punjab Government as an Assistant Surgeon on December 1, 1933. In course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14 , 1959, when Shri Pritarn Singh Brar was appointed Director in his place. On Shri Pritam Singh Brars attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965. On September 2 , 1967, the appellant was served with the following order:-"The Governor of Punjab is pleased to retire Shri Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry, Punjab, Chandigarh with effect from the date of communication to him of this order on payment of three months salary and allowances in lieu of notice required by rule 5.32(c) of the Punjab Civil Service Rules, Volume II."2. Shri Harbhajan Singh Saini, Technical Expert Po ultry is hereby directed to relieve Shri Mohan Singh Malhi.S. S. GREWALSecretary to Government PunjabAnimal Husbandry DepartmentChandigarh,Dated the 2nd Sept. 67"No. 3840/AH(I)-67/6213 Chandigarh dated the 2nd Sept. 1967 A copy is forwarded to Shri Mohan Singh Malhi, P.V.S.I."3. Against this order, the appellant made several representations which did not evoke a favourable response. Eventually, he approached the High Court on March 18, 1968, by means of a petition under Articles 226 and 227 of the Constitution of India for issue of an appropriate writ quashing the aforesaid order dated September 2, 1967, and declaring that he still continued to be in service. A Single Judge of the High Court allowed the appellants petition by judgment and order dated April 22, 1968, and quashed the aforesaid order retiring the appellant from service. Aggrieved by the judgment and order of the Single Judge, the State of Punjab preferred a Letters Patent Appeal. The Bench hearing the appeal referred the above mentioned question for decision to a Full Bench of the Court. On December 18, 1969, the Full Bench by majority answered the question referred to it in the affirmative. Thereupon the appellant applied for and obtained a certificate of fitness to appeal to this Court. This is how the appeal is before us.4. Appearing in support of the appeal, counsel for the appellant has vehemently contended that the aforesaid majority decision of the Full Bench of the High Court is erroneous as there is no provision in the Punjab Civil Service Rules like the one contained in Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, authorising the State Government to give three months salary in lieu of three months notice.For a proper decision of the question, it is necessary to refer to Rule 5.32(c) of the Punjab Civil Service Rules, Vol. II which runs as under:-"5.32 ... ... ...(c) (Vide No. 1243-5FRI-64/1143 dated 4.2.1964) A retiring pension is also granted to a Government servant other than a class IV Government servant;(i) Who is retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than 3 months notice,(ii ) Who retires on or after attaining the age of 55 years by giving not less than three months notice of his intention to retire to the appointing authority. Provided that where the notice is given before the age of 55 years is attained, it shall be given effect to from a date not earlier than the date on which the 55 years is attained.NOTE:- Appointing authority retains an absolute right to retire any Government servant except a Class IV servant on or after he has attained the age of 55 years with out assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years."5. It will be noticed that the Rule as reproduced above merely provides for a contingency in which a retiring pension is to be granted to a Government servant. Assuming that the rule by implication requires three months notice to be given to a Government servant of the description referred to therein before retiring him from service, we are unable to understand how that requirement can be said to be violated if instead of three months notice, payment of three months salary and allowances is made to him. The object of the notice, as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no prejudice can be said to be caused to the Government servant if in lieu of three months notice, he is given three months salary and allowances. In fact, he is put in a more advantageous position by being paid three months salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs. Thus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, there is nothing to debar it from validly doing so by payment to him of a sum equivalent to the amount of his pay and allowances for the period of the notice.For the foregoing reasons, we are unable to interfere with the majority view of the Full Bench of the High Court. | 0[ds]It will be noticed that the Rule as reproduced above merely provides for a contingency in which a retiring pension is to be granted to a Government servant. Assuming that the rule by implication requires three months notice to be given to a Government servant of the description referred to therein before retiring him from service, we are unable to understand how that requirement can be said to be violated if instead of three months notice, payment of three months salary and allowances is made to him. The object of the notice, as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no prejudice can be said to be caused to the Government servant if in lieu of three months notice, he is given three months salary and allowances. In fact, he is put in a more advantageous position by being paid three months salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs. Thus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, there is nothing to debar it from validly doing so by payment to him of a sum equivalent to the amount of his pay and allowances for the period of the notice.For the foregoing reasons, we are unable to interfere with the majority view of the Full Bench of the High Court. | 0 | 1,183 | 334 | ### Instruction:
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retire an employee on or after he attains the age of 55 years by giving him three months salary and allowances in lieu of three months notice.2. The facts giving rise to the appeal lie in a short compass and may be stated thus;Before the partition of the country, the appellant joined the Veterinary Department of the Punjab Government as an Assistant Surgeon on December 1, 1933. In course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14 , 1959, when Shri Pritarn Singh Brar was appointed Director in his place. On Shri Pritam Singh Brars attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965. On September 2 , 1967, the appellant was served with the following order:-"The Governor of Punjab is pleased to retire Shri Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry, Punjab, Chandigarh with effect from the date of communication to him of this order on payment of three months salary and allowances in lieu of notice required by rule 5.32(c) of the Punjab Civil Service Rules, Volume II."2. Shri Harbhajan Singh Saini, Technical Expert Po ultry is hereby directed to relieve Shri Mohan Singh Malhi.S. S. GREWALSecretary to Government PunjabAnimal Husbandry DepartmentChandigarh,Dated the 2nd Sept. 67"No. 3840/AH(I)-67/6213 Chandigarh dated the 2nd Sept. 1967 A copy is forwarded to Shri Mohan Singh Malhi, P.V.S.I."3. Against this order, the appellant made several representations which did not evoke a favourable response. Eventually, he approached the High Court on March 18, 1968, by means of a petition under Articles 226 and 227 of the Constitution of India for issue of an appropriate writ quashing the aforesaid order dated September 2, 1967, and declaring that he still continued to be in service. A Single Judge of the High Court allowed the appellants petition by judgment and order dated April 22, 1968, and quashed the aforesaid order retiring the appellant from service. Aggrieved by the judgment and order of the Single Judge, the State of Punjab preferred a Letters Patent Appeal. The Bench hearing the appeal referred the above mentioned question for decision to a Full Bench of the Court. On December 18, 1969, the Full Bench by majority answered the question referred to it in the affirmative. Thereupon the appellant applied for and obtained a certificate of fitness to appeal to this Court. This is how the appeal is before us.4. Appearing in support of the appeal, counsel for the appellant has vehemently contended that the aforesaid majority decision of the Full Bench of the High Court is erroneous as there is no provision in the Punjab Civil Service Rules like the one contained in Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, authorising the State Government to give three months salary in lieu of three months notice.For a proper decision of the question, it is necessary to refer to Rule 5.32(c) of the Punjab Civil Service Rules, Vol. II which runs as under:-"5.32 ... ... ...(c) (Vide No. 1243-5FRI-64/1143 dated 4.2.1964) A retiring pension is also granted to a Government servant other than a class IV Government servant;(i) Who is retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than 3 months notice,(ii ) Who retires on or after attaining the age of 55 years by giving not less than three months notice of his intention to retire to the appointing authority. Provided that where the notice is given before the age of 55 years is attained, it shall be given effect to from a date not earlier than the date on which the 55 years is attained.NOTE:- Appointing authority retains an absolute right to retire any Government servant except a Class IV servant on or after he has attained the age of 55 years with out assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years."5. It will be noticed that the Rule as reproduced above merely provides for a contingency in which a retiring pension is to be granted to a Government servant. Assuming that the rule by implication requires three months notice to be given to a Government servant of the description referred to therein before retiring him from service, we are unable to understand how that requirement can be said to be violated if instead of three months notice, payment of three months salary and allowances is made to him. The object of the notice, as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no prejudice can be said to be caused to the Government servant if in lieu of three months notice, he is given three months salary and allowances. In fact, he is put in a more advantageous position by being paid three months salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs. Thus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, there is nothing to debar it from validly doing so by payment to him of a sum equivalent to the amount of his pay and allowances for the period of the notice.For the foregoing reasons, we are unable to interfere with the majority view of the Full Bench of the High Court.
### Response:
0
### Explanation:
It will be noticed that the Rule as reproduced above merely provides for a contingency in which a retiring pension is to be granted to a Government servant. Assuming that the rule by implication requires three months notice to be given to a Government servant of the description referred to therein before retiring him from service, we are unable to understand how that requirement can be said to be violated if instead of three months notice, payment of three months salary and allowances is made to him. The object of the notice, as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no prejudice can be said to be caused to the Government servant if in lieu of three months notice, he is given three months salary and allowances. In fact, he is put in a more advantageous position by being paid three months salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs. Thus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, there is nothing to debar it from validly doing so by payment to him of a sum equivalent to the amount of his pay and allowances for the period of the notice.For the foregoing reasons, we are unable to interfere with the majority view of the Full Bench of the High Court.
|
Indian Explosives Ltd. & Another Vs. Coal India Ltd. & Others | therein by the respondent - Coal India Ltd. It was urged that the said supplementary clause clearly nullifies the clear understanding and terms of the original contract contained in Clause XV. Clase XV of the Original Contract and the supplementary clause inserted are in the following terms: CLAUSE XV - PERFORMANCE 1(A). Review of your product performance will be made on the basis of fragmentation/muck piling costs per Cu.M. and Capacity improvement achieved for the total system. In the event of your Product not providing satisfactory results mutually agreed upon, proportionate reduction in prices for the Products which failed will be made. You are to provide optimum blast design for each mine benchwise and render all related including provisioning of vibration monitoring. In the event of failure of Blast, the cost of Explosives used in the Blast, and all other incidental charges will be recovered from you. B) If there is a complaint for low powder factor, you must be penalized/ supply restricted for continuous poor performance. The management of the respective subsidiary companies, would then divert the balance quantity (supposed to be allotted to you and there is a product complaint for low powder factor etc. against your past supplies) to the other manufacturers (on pro-rata basis) whose products are having better powder factor. This diversion of quantities due to poor product performance should be made with the approval of D(T) of concerned subsidiary companies. 2. The limits of Velocity of Detonation, Density and Cap/Booster Sensitivity which will govern at the time of Random Testing of the products ordered on you are indicated below:- Sl.Particulars of Test to be conductedLimit of RangesEmulsionSlurry 1.Velocity of Detonation (m/sec.)Fresh SampleAfter sleepage in water (24 hrs.)4000+/- 5004000+/- 500800+/- 500800+/- 500 2.Density (gm/cc)Fresh SampleAfter sleepage in water (24 hrs.)1.15+/- 0.051.15+/- 0.051.15+/- 0.101.15+/- 0.10 3.Cap/Booster SensitivityFresh SampleAfter sleepage in water (24 hrs.)Sample should fire with 100 gm. Cast Booster.Sample should fire with 100 gm. Cast Booster. *** SUPPLEMENTARY CLAUSE XV (PERFORMANCE CLAUSE) The weighted average Powder Factor separately for Coal and OB for 10 years commencing from 2004-05 to 1995-96 and that of 2004-05 shall be worked out mine-wise. The higher of weighted average Powder Factor for 10(ten) years (from 2004-05 to 1995-96] and that of 2004-05 shall be hereinafter referred to as the minimum yield. The mine-wise achievement of Powder Factor should not be less than the minimum yield referred to above. For every 1% (one per cent) or part thereof, decrease in Powder Factor of Coal/OB compared to the minimum yield as above, commensurate deduction of the cost of explosives and accessories shall be made. Such computation for deduction shall be made on monthly basis. 4. The difference between Clause XV as per the original agreement and the supplementary clause inserted is that while under the original agreement the quality/effectiveness of the product supplied was to be tested by means of mutual negotiations and discussions in the event of a complaint, under the supplementary clause, the powder factor which was determinative of the quality of the product was specified. 5. Coal India Limited is a Government Company and the majority shareholding is still with the Government of India. It is the Government of India, who, therefore, commands a majority in the Board of Directors. Being a Government Company it is amenable to Government directions and control and, therefore, has been held by this Court in Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625 to be a State within the meaning of Article 12 of the Constitution of India. 6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant. 7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement. 8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us is self-evident from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly. | 1[ds]6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us ist from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly. | 1 | 1,273 | 444 | ### 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:
therein by the respondent - Coal India Ltd. It was urged that the said supplementary clause clearly nullifies the clear understanding and terms of the original contract contained in Clause XV. Clase XV of the Original Contract and the supplementary clause inserted are in the following terms: CLAUSE XV - PERFORMANCE 1(A). Review of your product performance will be made on the basis of fragmentation/muck piling costs per Cu.M. and Capacity improvement achieved for the total system. In the event of your Product not providing satisfactory results mutually agreed upon, proportionate reduction in prices for the Products which failed will be made. You are to provide optimum blast design for each mine benchwise and render all related including provisioning of vibration monitoring. In the event of failure of Blast, the cost of Explosives used in the Blast, and all other incidental charges will be recovered from you. B) If there is a complaint for low powder factor, you must be penalized/ supply restricted for continuous poor performance. The management of the respective subsidiary companies, would then divert the balance quantity (supposed to be allotted to you and there is a product complaint for low powder factor etc. against your past supplies) to the other manufacturers (on pro-rata basis) whose products are having better powder factor. This diversion of quantities due to poor product performance should be made with the approval of D(T) of concerned subsidiary companies. 2. The limits of Velocity of Detonation, Density and Cap/Booster Sensitivity which will govern at the time of Random Testing of the products ordered on you are indicated below:- Sl.Particulars of Test to be conductedLimit of RangesEmulsionSlurry 1.Velocity of Detonation (m/sec.)Fresh SampleAfter sleepage in water (24 hrs.)4000+/- 5004000+/- 500800+/- 500800+/- 500 2.Density (gm/cc)Fresh SampleAfter sleepage in water (24 hrs.)1.15+/- 0.051.15+/- 0.051.15+/- 0.101.15+/- 0.10 3.Cap/Booster SensitivityFresh SampleAfter sleepage in water (24 hrs.)Sample should fire with 100 gm. Cast Booster.Sample should fire with 100 gm. Cast Booster. *** SUPPLEMENTARY CLAUSE XV (PERFORMANCE CLAUSE) The weighted average Powder Factor separately for Coal and OB for 10 years commencing from 2004-05 to 1995-96 and that of 2004-05 shall be worked out mine-wise. The higher of weighted average Powder Factor for 10(ten) years (from 2004-05 to 1995-96] and that of 2004-05 shall be hereinafter referred to as the minimum yield. The mine-wise achievement of Powder Factor should not be less than the minimum yield referred to above. For every 1% (one per cent) or part thereof, decrease in Powder Factor of Coal/OB compared to the minimum yield as above, commensurate deduction of the cost of explosives and accessories shall be made. Such computation for deduction shall be made on monthly basis. 4. The difference between Clause XV as per the original agreement and the supplementary clause inserted is that while under the original agreement the quality/effectiveness of the product supplied was to be tested by means of mutual negotiations and discussions in the event of a complaint, under the supplementary clause, the powder factor which was determinative of the quality of the product was specified. 5. Coal India Limited is a Government Company and the majority shareholding is still with the Government of India. It is the Government of India, who, therefore, commands a majority in the Board of Directors. Being a Government Company it is amenable to Government directions and control and, therefore, has been held by this Court in Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625 to be a State within the meaning of Article 12 of the Constitution of India. 6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant. 7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement. 8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us is self-evident from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly.
### Response:
1
### Explanation:
6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us ist from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly.
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State Of Madras Vs. Davar And Company Etc | of India.Clause (2) of Article 286 gives power to the Parliament, by law, to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in Clause (1). According Parliament has enacted the Central Act. Section 5 of that Act lays down the conditions under which a sale or purchase of goods can be said to take place in the course of import or export. Sub-section (1) and (2) deal with sale or purchase of goods in the course of export and sale or purchase of goods in the course of import, respectively. As we are concerned with a sale in the course of import, the relevant provision is sub-section (2) of Section 5, which is as follows:"5 (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India".11. In this case, the claim made by the assessee for exemption from tax liability is on the ground that the sale was effected by transfer to the buyer of documents of title to the goods. Under Section 5 (2) of the Central Act, in order to treat the sale as one in the course of import, the documents of title must have been transferred before the goods have crossed the customs frontiers of India.12. The question is what does the expression customs frontiers of India, in Section 5 of the Central Act, mean? To answer this question, it is necessary to refer to certain Proclamations made by the President of India and Notifications issued by the Central Government under S.3-A of the Sea Customs Act, 1878 (Act VIII of 1878) (hereinafter called the Act).13. The President of India has issued a Proclamation dated March 22, 1956 and that contains a declaration as to the extent of the territorial waters of India. The Proclamation has been published with the notification of the Government of India in the Ministry of External Affairs, No. S. R.O. 669, dated March 29, 1956 and is as follows:"S.R.O. 669 - The following proclamation by the President is published for general information:PROCLAMATION"Whereas international law has always recognised that sovereignty of a State extends to a belt of sea adjacent to its coast;And whereas international practice is not uniform as regards the extent of this sea-belt commonly known as the territorial waters of the State, and consequently it is necessary to make a declaration as to the extent of the territorial waters of India;I, Rajendra Prasad, President of India, in the Seventh Year of the Republic, do hereby proclaim that, notwithstanding any rule of law or practice to the contrary which may have been observed in the past in relation to India or any part thereof, the territorial waters of the India extend into the sea to a distance of six nautical miles measured from the appropriate base line".RAJENDRA PRASADPresident".14. On September 30, 1967 another Proclamation was issued by the President of India and published with the notification of the Government of India in the Ministry of External Affairs, No. F.L./111 (1)/67 dated September 30, 1967. By this Proclamation the earlier Proclamation of March 22, 1956 has been superseded and the territorial waters of India have been declared to extent into the sea to a distance of twelve nautical miles measured from the appropriate base line. But in the present appeals, we are concerned only with the earlier Proclamation dated March 22, 1956.15. Section 3-A of the Act gives power to the Central Government, to define, by notification in the Official Gazette, the customs frontiers of India. By virtue of the powers conferred by this section, the Central Government (Ministry of Finance, Revenue Division) had issued a notification, No. 25-Customs, dated April 1, 1950, defining the customs frontiers of India; but it is not necessary to consider the definition contained in this notification as it has been superseded by the issue of a fresh Notification, No. S. R.O. 1683 dated August 6, 1955. The later notification, issued by the Ministry of Finance (Revenue Division), Customs, which is relevant for the present purpose, is as follows:"New Delhi, the 6th August,1955.S. R.O. 1683 - In exercise of the powers conferred by Section 3-A of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of the notification of the Government of India in the Ministry of Finance (Revenue Division) No. 25- Customs, dated the 1st April 1950, the Central Government hereby defines the customs frontiers of India as the boundaries of the territory, including territorial waters of India.Sd/-Jt. Secretary".16. The expression customs frontiers of India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec. 3-A of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court.17. | 1[ds]10. We are of the view that the judgment of the Madras High Court cannot be sustained and the expression customs frontiers in Section 5 of the Central Act cannot be construed to mean customswe are concerned with a sale in the course of import, the relevant provision is sub-section (2) of Sectionexpression customs frontiers of India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec. 3-A of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court.of the Act gives power to the Central Government, to define, by notification in the Official Gazette, the customs frontiers of India. By virtue of the powers conferred by this section, the Central Government (Ministry of Finance, Revenue Division) had issued a notification, No.dated April 1, 1950, defining the customs frontiers of India; but it is not necessary to consider the definition contained in this notification as it has been superseded by the issue of a fresh Notification, No. S. R.O. 1683 dated August 6, 1955. The later notification, issued by the Ministry of Finance (Revenue Division), Customs, which is relevant for the present purpose, is asDelhi, the 6th August,1955.S. R.O. 1683In exercise of the powers conferred by Sectionof the Sea Customs Act, 1878 (VIII of 1878), and in supersession of the notification of the Government of India in the Ministry of Finance (Revenue Division) No. 25Customs, dated the 1st April 1950, the Central Government hereby defines the customs frontiers of India as the boundaries of the territory, including territorial waters of India.e expression customs frontiersof India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec.of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court. | 1 | 2,684 | 711 | ### 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:
of India.Clause (2) of Article 286 gives power to the Parliament, by law, to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in Clause (1). According Parliament has enacted the Central Act. Section 5 of that Act lays down the conditions under which a sale or purchase of goods can be said to take place in the course of import or export. Sub-section (1) and (2) deal with sale or purchase of goods in the course of export and sale or purchase of goods in the course of import, respectively. As we are concerned with a sale in the course of import, the relevant provision is sub-section (2) of Section 5, which is as follows:"5 (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India".11. In this case, the claim made by the assessee for exemption from tax liability is on the ground that the sale was effected by transfer to the buyer of documents of title to the goods. Under Section 5 (2) of the Central Act, in order to treat the sale as one in the course of import, the documents of title must have been transferred before the goods have crossed the customs frontiers of India.12. The question is what does the expression customs frontiers of India, in Section 5 of the Central Act, mean? To answer this question, it is necessary to refer to certain Proclamations made by the President of India and Notifications issued by the Central Government under S.3-A of the Sea Customs Act, 1878 (Act VIII of 1878) (hereinafter called the Act).13. The President of India has issued a Proclamation dated March 22, 1956 and that contains a declaration as to the extent of the territorial waters of India. The Proclamation has been published with the notification of the Government of India in the Ministry of External Affairs, No. S. R.O. 669, dated March 29, 1956 and is as follows:"S.R.O. 669 - The following proclamation by the President is published for general information:PROCLAMATION"Whereas international law has always recognised that sovereignty of a State extends to a belt of sea adjacent to its coast;And whereas international practice is not uniform as regards the extent of this sea-belt commonly known as the territorial waters of the State, and consequently it is necessary to make a declaration as to the extent of the territorial waters of India;I, Rajendra Prasad, President of India, in the Seventh Year of the Republic, do hereby proclaim that, notwithstanding any rule of law or practice to the contrary which may have been observed in the past in relation to India or any part thereof, the territorial waters of the India extend into the sea to a distance of six nautical miles measured from the appropriate base line".RAJENDRA PRASADPresident".14. On September 30, 1967 another Proclamation was issued by the President of India and published with the notification of the Government of India in the Ministry of External Affairs, No. F.L./111 (1)/67 dated September 30, 1967. By this Proclamation the earlier Proclamation of March 22, 1956 has been superseded and the territorial waters of India have been declared to extent into the sea to a distance of twelve nautical miles measured from the appropriate base line. But in the present appeals, we are concerned only with the earlier Proclamation dated March 22, 1956.15. Section 3-A of the Act gives power to the Central Government, to define, by notification in the Official Gazette, the customs frontiers of India. By virtue of the powers conferred by this section, the Central Government (Ministry of Finance, Revenue Division) had issued a notification, No. 25-Customs, dated April 1, 1950, defining the customs frontiers of India; but it is not necessary to consider the definition contained in this notification as it has been superseded by the issue of a fresh Notification, No. S. R.O. 1683 dated August 6, 1955. The later notification, issued by the Ministry of Finance (Revenue Division), Customs, which is relevant for the present purpose, is as follows:"New Delhi, the 6th August,1955.S. R.O. 1683 - In exercise of the powers conferred by Section 3-A of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of the notification of the Government of India in the Ministry of Finance (Revenue Division) No. 25- Customs, dated the 1st April 1950, the Central Government hereby defines the customs frontiers of India as the boundaries of the territory, including territorial waters of India.Sd/-Jt. Secretary".16. The expression customs frontiers of India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec. 3-A of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court.17.
### Response:
1
### Explanation:
10. We are of the view that the judgment of the Madras High Court cannot be sustained and the expression customs frontiers in Section 5 of the Central Act cannot be construed to mean customswe are concerned with a sale in the course of import, the relevant provision is sub-section (2) of Sectionexpression customs frontiers of India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec. 3-A of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court.of the Act gives power to the Central Government, to define, by notification in the Official Gazette, the customs frontiers of India. By virtue of the powers conferred by this section, the Central Government (Ministry of Finance, Revenue Division) had issued a notification, No.dated April 1, 1950, defining the customs frontiers of India; but it is not necessary to consider the definition contained in this notification as it has been superseded by the issue of a fresh Notification, No. S. R.O. 1683 dated August 6, 1955. The later notification, issued by the Ministry of Finance (Revenue Division), Customs, which is relevant for the present purpose, is asDelhi, the 6th August,1955.S. R.O. 1683In exercise of the powers conferred by Sectionof the Sea Customs Act, 1878 (VIII of 1878), and in supersession of the notification of the Government of India in the Ministry of Finance (Revenue Division) No. 25Customs, dated the 1st April 1950, the Central Government hereby defines the customs frontiers of India as the boundaries of the territory, including territorial waters of India.e expression customs frontiersof India in Section 5 of the Central Act, in our opinion, must be construed in accordance with the notification issued by the Central Government under Sec.of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the sales were effected by transfer of documents of title long after the goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were all in the respective harbours within the State of Madras when the sales were effected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the course of import, has been rightly rejected by the assessing authority.Unfortunately, though various aspects seem to have been pressed before the High Court by the State of Madras, this notification of August 6, 1955, issued by the Government of India, defining the customs frontiers of India, was not brought to the notice of the High Court.
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Veruareddi Ramaraghava Reddy And Ors Vs. Konduru Seshu Reddy And 2 Ors | its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity, (See for example, Kalyana Venkataramana Ayyangar v. Kasturiranga Ayyangar, ILR 40 Mad 212 : (AIR 1917 Mad 112 (FB)) and Chidambaranatha Thambiran v. Nallasiva Mudaliar, ILR 41 Mad 124 : (AIR 1918 Mad 464 ).It has also been decided by the Judicial Committee in Abdur Rehim v. Mahomed Barkat Ali, 55 Ind App 96: (AIR 1928 PC 16 ) that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties. 11. In our opinion, S. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 41 of the Specific Relief Act. 12. The next question presented for determination in this case is whether the compromise decree is invalid for the reason that the Commissioner did not represent the deity. The High Court has taken the view that the Commissioner could not represent the deity because S. 20 of the Hindu Religions and Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judical proceedings. It is true that under S. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under S. 85 of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebati himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend nominated by the court.The principle is clearly stated in Pramath Nath v. Pradyumna Kumar, ILR 52 Cal 809: (AIR 1925 PC 139 ). That was a suit between contending she baits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in O. P. No. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deity. It was also contended by Mr. P. Rama Reddy on behalf of respondent No. I that the compromise decree was beyond the scope of the proceedings in O. P. No. 3 of 1950 and was, therefore, invalid. In our opinion, this argument is well founded and must prevail. The proceeding was brought under S. 84 (2) of the old Act (Act II of 1927) for setting aside the order of the Board, dated October 5, 1949 declaring the temple of Shri Kodandaramaswami as a temple defined in S. 6, Cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioners family and not the properties of the temple. Such a declaration was outside the purview of S. 84 (2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent No. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O. P. No. 3 of 1950 was not valid and was not binding upon Shri Kodanaramaswami temple. 13. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in our remanding the matter to the trial court on this question and the matter will be unduly protracted. | 1[ds]The Judicial Committee observed that S. 42 of the Specific Relief Act did not apply to the case and that it was not a question of exercising a discretion under that Section; and they gave to the appellant a decree setting aside the decree complained of and declaring that the agreement of compromise and the decree complained of were not binding upon the appellants or either of them and that they were entitled to such rights as they had before the suit was dismissed on December 15, 1899In our opinion, the decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Prasad Singh, ILR 43 Cal 694: (AIR 1916 PC 78) should be explained on the ground that the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and as the propriety of that decision could not be impeached in subsequent proceedings, the plaintiffs could not sue, not being reversioners10. The legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple. If a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of temples are in the position of cestui que trustent (sic) or beneficiaries in a spiritual sense11. In our opinion, S. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 41 of the Specific Relief ActThe High Court has taken the view that the Commissioner could not represent the deity because S. 20 of the Hindu Religions and Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judical proceedings. It is true that under S. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under S. 85 of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebati himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend nominated by the court.The principle is clearly stated in Pramath Nath v. Pradyumna Kumar, ILR 52 Cal 809: (AIR 1925 PC 139 ). That was a suit between contending she baits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in O. P. No. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deityThe proceeding was brought under S. 84 (2) of the old Act (Act II of 1927) for setting aside the order of the Board, dated October 5, 1949 declaring the temple of Shri Kodandaramaswami as a temple defined in S. 6, Cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioners family and not the properties of the temple. Such a declaration was outside the purview of S. 84 (2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent No. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O. P. No. 3 of 1950 was not valid and was not binding upon Shri Kodanaramaswami temple13. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in our remanding the matter to the trial court on this question and the matter will be unduly protracted8. Upon this argument we think that there is both principle and authority for holding that the present suit is not governed by S. 42 of the Specific Relief Act. In Fischer v. Secy of State for India in Council, (1899) 26 Ind App l6 (PC) Lord Macnaghten said of this Section :"Now, in the first place it is at least open to doubt whether the present suit is within the purview of S. 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that Section. It was intended to introduce the provisions of S. 50 of the Chancery Procedure Act of 1852 (15 and 16 Vict. c. 86) as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852. It is in substance a suit to have the true construction of a statute declared, and to have an act done in contravention of the statute rightly understood pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind."In Partab Singh v. Bhabute Singh, (1913) 40 Ind App 182 (PC) the appellants sued for a declaration that a compromise of certainn suits and decrees passed thereunder made on their behalf when they were minors were not binding on them, having been obtained by fraud and in proceedings in which they were practically unrepresented. The Subordinate Judge having decreed the suit on appeal the members of the Court of the Judicial Commissioner differed upon the question whether the declaration sought should be refused as a matter of discretion under S. 42 of the Specific Relief Act. Before the Judicial Committee it was contended for the respondent that the suit having been filed for the purpose of obtaining a declaratory decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory decree, the Court had a discretion as to the granting or refusing such a declaration. | 1 | 4,466 | 1,548 | ### 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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its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity, (See for example, Kalyana Venkataramana Ayyangar v. Kasturiranga Ayyangar, ILR 40 Mad 212 : (AIR 1917 Mad 112 (FB)) and Chidambaranatha Thambiran v. Nallasiva Mudaliar, ILR 41 Mad 124 : (AIR 1918 Mad 464 ).It has also been decided by the Judicial Committee in Abdur Rehim v. Mahomed Barkat Ali, 55 Ind App 96: (AIR 1928 PC 16 ) that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties. 11. In our opinion, S. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 41 of the Specific Relief Act. 12. The next question presented for determination in this case is whether the compromise decree is invalid for the reason that the Commissioner did not represent the deity. The High Court has taken the view that the Commissioner could not represent the deity because S. 20 of the Hindu Religions and Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judical proceedings. It is true that under S. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under S. 85 of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebati himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend nominated by the court.The principle is clearly stated in Pramath Nath v. Pradyumna Kumar, ILR 52 Cal 809: (AIR 1925 PC 139 ). That was a suit between contending she baits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in O. P. No. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deity. It was also contended by Mr. P. Rama Reddy on behalf of respondent No. I that the compromise decree was beyond the scope of the proceedings in O. P. No. 3 of 1950 and was, therefore, invalid. In our opinion, this argument is well founded and must prevail. The proceeding was brought under S. 84 (2) of the old Act (Act II of 1927) for setting aside the order of the Board, dated October 5, 1949 declaring the temple of Shri Kodandaramaswami as a temple defined in S. 6, Cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioners family and not the properties of the temple. Such a declaration was outside the purview of S. 84 (2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent No. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O. P. No. 3 of 1950 was not valid and was not binding upon Shri Kodanaramaswami temple. 13. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in our remanding the matter to the trial court on this question and the matter will be unduly protracted.
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the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under S. 85 of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebati himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend nominated by the court.The principle is clearly stated in Pramath Nath v. Pradyumna Kumar, ILR 52 Cal 809: (AIR 1925 PC 139 ). That was a suit between contending she baits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in O. P. No. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deityThe proceeding was brought under S. 84 (2) of the old Act (Act II of 1927) for setting aside the order of the Board, dated October 5, 1949 declaring the temple of Shri Kodandaramaswami as a temple defined in S. 6, Cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioners family and not the properties of the temple. Such a declaration was outside the purview of S. 84 (2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent No. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O. P. No. 3 of 1950 was not valid and was not binding upon Shri Kodanaramaswami temple13. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in our remanding the matter to the trial court on this question and the matter will be unduly protracted8. Upon this argument we think that there is both principle and authority for holding that the present suit is not governed by S. 42 of the Specific Relief Act. In Fischer v. Secy of State for India in Council, (1899) 26 Ind App l6 (PC) Lord Macnaghten said of this Section :"Now, in the first place it is at least open to doubt whether the present suit is within the purview of S. 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that Section. It was intended to introduce the provisions of S. 50 of the Chancery Procedure Act of 1852 (15 and 16 Vict. c. 86) as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852. It is in substance a suit to have the true construction of a statute declared, and to have an act done in contravention of the statute rightly understood pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind."In Partab Singh v. Bhabute Singh, (1913) 40 Ind App 182 (PC) the appellants sued for a declaration that a compromise of certainn suits and decrees passed thereunder made on their behalf when they were minors were not binding on them, having been obtained by fraud and in proceedings in which they were practically unrepresented. The Subordinate Judge having decreed the suit on appeal the members of the Court of the Judicial Commissioner differed upon the question whether the declaration sought should be refused as a matter of discretion under S. 42 of the Specific Relief Act. Before the Judicial Committee it was contended for the respondent that the suit having been filed for the purpose of obtaining a declaratory decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory decree, the Court had a discretion as to the granting or refusing such a declaration.
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N. Harihara Krishnan Vs. J. Thomas | once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under Section 173. Section 173(2)(i)(d) inter alia stipulates that the report should contain a statement: "Whether any offence appears to have been committed and if so by whom?" The conclusions reached by the police after investigation into the above two questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence collected by the investigating agency is sufficient in law to punish the accused, such accused can be punished. Taking cognizance of an offence by the Court is one of the initial steps in the process. Thereafter, the investigating agency is required to collect evidence (investigate) and place the same before the Court under Section 173 CrPC. 23. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 24. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. 25. The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act.26. No doubt Section 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16. | 1[ds]Nonetheless, the respondent filed the complaint stating that the cheque in question for Rs. 39 lakhs was drawn towards the balance of the sale consideration of the transactions covered by thethree sale deeds. Prima facie, it is very doubtful whether the cheque was drawn for any amount which is legally due to the respondent from the appellant.10. A xerox copy of the cheque is placed before us. The number of the account on which the cheque was drawn is not very clear from the said copy. But from the content of the application from out of which the instant appeal arises and from the xerox copy of the cheque it appears that it was drawn on the account of DAKSHIN by somebody who claims to be a Director of DAKSHIN. It is a case of the respondent that the cheque was signed by the appellant. There appears to be some dispute regarding the identity of the person who signed the cheque. It can be seen from para 2 of the complaint, the said cheque was handed over to the respondent through "an unknown person at Chennai High Court premises".11. Assuming for the sake of argument that an amount of Rs. 39 lakhs was due towards the balance of the sale consideration of thethree sales from the FIRM of which the appellant is said to be the Managing Partner. The cheque in question was drawn by a private company (DAKSHIN) (a third party to the sale transactions and such a payment is permissible under the Indian Contract Act) and allegedly signed by the appellant in his capacity as the Director of DAKSHIN.We are of the opinion that it is difficult to understand the conclusions recorded by both the courts below. They are wholly illogical, to use a very mild expression.The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act.26. No doubt Section 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16. | 1 | 5,803 | 525 | ### 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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once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under Section 173. Section 173(2)(i)(d) inter alia stipulates that the report should contain a statement: "Whether any offence appears to have been committed and if so by whom?" The conclusions reached by the police after investigation into the above two questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence collected by the investigating agency is sufficient in law to punish the accused, such accused can be punished. Taking cognizance of an offence by the Court is one of the initial steps in the process. Thereafter, the investigating agency is required to collect evidence (investigate) and place the same before the Court under Section 173 CrPC. 23. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 24. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. 25. The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act.26. No doubt Section 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16.
### Response:
1
### Explanation:
Nonetheless, the respondent filed the complaint stating that the cheque in question for Rs. 39 lakhs was drawn towards the balance of the sale consideration of the transactions covered by thethree sale deeds. Prima facie, it is very doubtful whether the cheque was drawn for any amount which is legally due to the respondent from the appellant.10. A xerox copy of the cheque is placed before us. The number of the account on which the cheque was drawn is not very clear from the said copy. But from the content of the application from out of which the instant appeal arises and from the xerox copy of the cheque it appears that it was drawn on the account of DAKSHIN by somebody who claims to be a Director of DAKSHIN. It is a case of the respondent that the cheque was signed by the appellant. There appears to be some dispute regarding the identity of the person who signed the cheque. It can be seen from para 2 of the complaint, the said cheque was handed over to the respondent through "an unknown person at Chennai High Court premises".11. Assuming for the sake of argument that an amount of Rs. 39 lakhs was due towards the balance of the sale consideration of thethree sales from the FIRM of which the appellant is said to be the Managing Partner. The cheque in question was drawn by a private company (DAKSHIN) (a third party to the sale transactions and such a payment is permissible under the Indian Contract Act) and allegedly signed by the appellant in his capacity as the Director of DAKSHIN.We are of the opinion that it is difficult to understand the conclusions recorded by both the courts below. They are wholly illogical, to use a very mild expression.The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act.26. No doubt Section 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16.
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Bobbili Ramakrishna Raju Yadav Vs. State Of A P Rep. By Its Public Prosecutor High Court Of A P Hyderbad A P | is well-settled that power under Section 482 Cr.P.C. should be sparingly exercised in rare cases. As has been laid down by this Court in the case of Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors., (1988) 1 SCC 692 , that when a prosecution at the initial stage was asked to be quashed, the test to be applied by the Court was as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. It was also for the Court to take into consideration any special feature which appears in a particular case to consider whether it was expedient and in the interest of justice to permit a prosecution to continue. This was so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. 12. In the light of the well settled principles, it is to be seen whether the allegations in the complaint in the present case and other materials accompanying the complaint disclose the offence punishable under Section 6 of the Dowry Prohibition Act. Marriage of first respondent and Syamala Rani was solemnized in Vizianagaram on 04.05.2007 and the couple was living in Bangalore. Appellants 2 to 6–the parents and sisters of appellant No.1 were living in Vizianagaram. It is the contention of the appellants that there are no allegations in the complaint that the ‘stridhana articles’ were given to appellants 2 to 6 and that they failed to return the same to Syamala Rani. In paras (3) and (4) of the complaint filed by the second respondent, it is alleged that he paid the dowry amount “to the accused and some ‘stridhana articles’ like double cot and other furniture and utensils required to set up a family”. In the complaint, it is vaguely alleged that even after death of deceased-Syamala Rani, the accused started threatening the complainant and that the accused offered to pay an amount of Rs.10,000/- towards full and final settlement. The relevant averments in the complaint in paragraphs (5) and (6) read as under:- “5. The complainant submits that even after the death of the deceased the accused by keeping the dead body on one side, started threatening the complainant and his family members that if they give any report to the police, they will be killed then and there only and they offered to pay an amount of Rs.10,000/- towards full and final settlement. There the complainant, who was in deep shock at the death of his daughter could not answer anything but gave a report to the police.6. The complainant submits that he lead several mediations with the accused through his colleagues, whose names are mentioned below for return of the dowry, but the accused did not return the amount and other amounts, given under different heads. A duty cast upon the accused to return those articles and amount, which were presented as dowry on demand made by the accused. The complainant reserves his right to file a fresh complaint against all the accused for return of the dowry.” By reading of the above, it is seen that there are no specific allegations against appellants 2 to 6 that the dowry articles were entrusted to them and that they have not returned the dowry amount and the articles to Syamala Rani. Equally, there are no allegations that those dowry articles were kept in Vizianagaram and used by appellants 2 to 6 who were separately living away from the couple in Bangalore. Even though complainant has alleged that the dowry amount was paid at the house of the accused at Gajapathinagaram, there are no specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6. 13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and first appellant were living in Bangalore at their matrimonial house. In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when the appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they were duty bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against appellants 2 to 6 and there is no sufficient ground for proceeding against the appellants 2 to 6. Be it noted that appellants 2 to 6 are also facing criminal prosecution for the offence under Sections 498A, 304B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view, continuation of the criminal proceeding against appellants 2 to 6 is not just and proper and the same is liable to be quashed. | 1[ds]13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and first appellant were living in Bangalore at their matrimonial house. In respect of ‘stridhanagiven to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when the appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they were duty bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against appellants 2 to 6 and there is no sufficient ground for proceeding against the appellants 2 to 6. Be it noted that appellants 2 to 6 are also facing criminal prosecution for the offence under Sections 498A, 304B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view, continuation of the criminal proceeding against appellants 2 to 6 is not just and proper and the same is liable to be quashed. | 1 | 2,761 | 346 | ### Instruction:
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is well-settled that power under Section 482 Cr.P.C. should be sparingly exercised in rare cases. As has been laid down by this Court in the case of Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre & Ors., (1988) 1 SCC 692 , that when a prosecution at the initial stage was asked to be quashed, the test to be applied by the Court was as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. It was also for the Court to take into consideration any special feature which appears in a particular case to consider whether it was expedient and in the interest of justice to permit a prosecution to continue. This was so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. 12. In the light of the well settled principles, it is to be seen whether the allegations in the complaint in the present case and other materials accompanying the complaint disclose the offence punishable under Section 6 of the Dowry Prohibition Act. Marriage of first respondent and Syamala Rani was solemnized in Vizianagaram on 04.05.2007 and the couple was living in Bangalore. Appellants 2 to 6–the parents and sisters of appellant No.1 were living in Vizianagaram. It is the contention of the appellants that there are no allegations in the complaint that the ‘stridhana articles’ were given to appellants 2 to 6 and that they failed to return the same to Syamala Rani. In paras (3) and (4) of the complaint filed by the second respondent, it is alleged that he paid the dowry amount “to the accused and some ‘stridhana articles’ like double cot and other furniture and utensils required to set up a family”. In the complaint, it is vaguely alleged that even after death of deceased-Syamala Rani, the accused started threatening the complainant and that the accused offered to pay an amount of Rs.10,000/- towards full and final settlement. The relevant averments in the complaint in paragraphs (5) and (6) read as under:- “5. The complainant submits that even after the death of the deceased the accused by keeping the dead body on one side, started threatening the complainant and his family members that if they give any report to the police, they will be killed then and there only and they offered to pay an amount of Rs.10,000/- towards full and final settlement. There the complainant, who was in deep shock at the death of his daughter could not answer anything but gave a report to the police.6. The complainant submits that he lead several mediations with the accused through his colleagues, whose names are mentioned below for return of the dowry, but the accused did not return the amount and other amounts, given under different heads. A duty cast upon the accused to return those articles and amount, which were presented as dowry on demand made by the accused. The complainant reserves his right to file a fresh complaint against all the accused for return of the dowry.” By reading of the above, it is seen that there are no specific allegations against appellants 2 to 6 that the dowry articles were entrusted to them and that they have not returned the dowry amount and the articles to Syamala Rani. Equally, there are no allegations that those dowry articles were kept in Vizianagaram and used by appellants 2 to 6 who were separately living away from the couple in Bangalore. Even though complainant has alleged that the dowry amount was paid at the house of the accused at Gajapathinagaram, there are no specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6. 13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and first appellant were living in Bangalore at their matrimonial house. In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when the appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they were duty bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against appellants 2 to 6 and there is no sufficient ground for proceeding against the appellants 2 to 6. Be it noted that appellants 2 to 6 are also facing criminal prosecution for the offence under Sections 498A, 304B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view, continuation of the criminal proceeding against appellants 2 to 6 is not just and proper and the same is liable to be quashed.
### Response:
1
### Explanation:
13. Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and first appellant were living in Bangalore at their matrimonial house. In respect of ‘stridhanagiven to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house. It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when the appellants 2 to 6 have been residing separately in Vizianagaram, it cannot be said that the dowry was given to them and that they were duty bound to return the same to Syamala Rani. Facts and circumstances of the case and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibition Act against appellants 2 to 6 and there is no sufficient ground for proceeding against the appellants 2 to 6. Be it noted that appellants 2 to 6 are also facing criminal prosecution for the offence under Sections 498A, 304B IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the criminal proceeding under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view, continuation of the criminal proceeding against appellants 2 to 6 is not just and proper and the same is liable to be quashed.
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P. RANJITHARAJ Vs. THE STATE OF TAMIL NADU & ORS | appointed on the post of APP Grade II by the Government by order dated 24th September, 2002. 5. So far as the present appellants are concerned, their names at the given point of time were withheld for want of further verification and clearance from the Commission. The Commission on verification granted clearance to both the appellants and intimated to the State Government by its communication dated 3rd September, 2002 (much before the appointments made by order dated 24th September, 2002). Despite all the formalities being completed, without any reasonable cause or justification, the State Government withheld the appointments of the appellants and finally both the appellants were appointed on the post of APP Grade II on 23rd August, 2005 and 23rd April, 2004 respectively. 6. In the meanwhile vide notification dated 6th August, 2003, an amendment was made under the Tamil Nadu Pension Rules, 1978 which came into force w.e.f. 1st April, 2003 and following proviso was added to Rule 2 : Provided that these rules shall not apply to Government Servants appointed on or after 1st April, 2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent. 7. Accordingly, the State Government introduced a new Contributory Pension Scheme applicable to the Tamil Nadu State Government employees who are recruited on or after 1st April, 2003. 8. The grievance of the appellants is that advertisement was published by the Commission on 9th November, 2001 for the block year 1998--2002, pursuant to which after selection 51 candidates out of 53 (except the appellants) were appointed by order dated 24th September, 2002 and before these appointments could be made, the names of the appellants were also cleared by the Commission after due verification on 3rd September, 2002, but the State Government failed to include their names while appointments of other selected candidates, including those who are lower in order of merit, were made on 24th September, 2002 and without any reasonable cause/justification, their appointments were withheld for two/three years and finally they were appointed on 23rd August, 2005 and 23rd April, 2004 respectively and the delay in appointments in no manner could be attributable to the appellants and because of their later appointments, the Government has denied them to avail the benefit and become a member of the Scheme, 1978 which was applicable to the employees who were appointed on or before 1st April, 2003. 9. The counsel for the appellants further submits that in terms of their placement in order of merit in the select list despite later appointments in the year 2004 and 2005, still all benefits, including seniority, promotion, etc. were extended to the appellants. In the given circumstances, merely because there is delay in appointment would not deprive the appellants of their right to become a member of the Pension Scheme, 1978 claiming parity with the other candidates who had participated in the common process of selection held by the Commission pursuant to advertisement dated 9th September, 2001 and the High Court has committed a manifest error to proceed blindly on the premise that since they were appointed after 1st April, 2003, are not entitled to become member of Pension Scheme, 1978, which was applicable to the employees appointed on or before 1st April, 2003 and the same needs to be interfered with by this Court. 10. Learned counsel for the respondents, on the other hand, while supporting the finding recorded by the High Court under the impugned judgment, submits that the Scheme of Rules 1978 which has been amended by the notification dated 6th August, 2003, is not under challenge and that clearly demonstrates that it will be applicable only to such of the employees who were appointed on or before 1st April, 2003, to draw the benefits of the Tamil Nadu Pension Rules, 1978. Admittedly, the present appellants were appointed much after the new Contributory Pension Scheme was introduced, which was applicable to the employees recruited on or after 1st April, 2003, which alone will be applicable to the present appellants and this what the High Court has observed in the impugned judgment and needs no further interference by this Court. 11. After we have heard counsel for the parties and with their assistance perused the material available on record, in our considered view, the premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self--same selection process pursuant to advertisement dated 9th September, 2001 held for the post of APP Grade II and verification was made by the Commission in the case of the present appellants on 3rd September, 2002. 12. In the given circumstances, when those who are lower in order of merit to the appellants were appointed by an order dated 24th September, 2002, the appellants have no right of say in the matter of appointment and no justification has been tendered by the State respondent as to why their names were withheld for two/three years, when their names were cleared by the Commission on 3rd September, 2002 and sent to the State Government and finally appointments were made of the appellants on 23rd August, 2005 and 23rd April, 2004 respectively and the delay indeed in making appointments in the case of the present appellants in no manner could be attributable to them. 13. In the given circumstances, when all other candidates who had participated along with the appellants pursuant to advertisement dated 9th November, 2001, on the recommendations made by the Commission were appointed on 24th September, 2002 including those who are lower in the order of merit, there appears no reason for withholding the names of the present appellants and merely because they were appointed at a later point of time, would not deprive them from claiming to become a member of Tamil Nadu Pen- sion Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003. | 1[ds]11. After we have heard counsel for the parties and with their assistance perused the material available on record, in our considered view, the premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self--same selection process pursuant to advertisement dated 9th September, 2001 held for the post of APP Grade II and verification was made by the Commission in the case of the present appellants on 3rd September, 2002.12. In the given circumstances, when those who are lower in order of merit to the appellants were appointed by an order dated 24th September, 2002, the appellants have no right of say in the matter of appointment and no justification has been tendered by the State respondent as to why their names were withheld for two/three years, when their names were cleared by the Commission on 3rd September, 2002 and sent to the State Government and finally appointments were made of the appellants on 23rd August, 2005 and 23rd April, 2004 respectively and the delay indeed in making appointments in the case of the present appellants in no manner could be attributable to them.13. In the given circumstances, when all other candidates who had participated along with the appellants pursuant to advertisement dated 9th November, 2001, on the recommendations made by the Commission were appointed on 24th September, 2002 including those who are lower in the order of merit, there appears no reason for withholding the names of the present appellants and merely because they were appointed at a later point of time, would not deprive them from claiming to become a member of Tamil Nadu Pen- sion Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003. | 1 | 1,263 | 330 | ### Instruction:
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appointed on the post of APP Grade II by the Government by order dated 24th September, 2002. 5. So far as the present appellants are concerned, their names at the given point of time were withheld for want of further verification and clearance from the Commission. The Commission on verification granted clearance to both the appellants and intimated to the State Government by its communication dated 3rd September, 2002 (much before the appointments made by order dated 24th September, 2002). Despite all the formalities being completed, without any reasonable cause or justification, the State Government withheld the appointments of the appellants and finally both the appellants were appointed on the post of APP Grade II on 23rd August, 2005 and 23rd April, 2004 respectively. 6. In the meanwhile vide notification dated 6th August, 2003, an amendment was made under the Tamil Nadu Pension Rules, 1978 which came into force w.e.f. 1st April, 2003 and following proviso was added to Rule 2 : Provided that these rules shall not apply to Government Servants appointed on or after 1st April, 2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent. 7. Accordingly, the State Government introduced a new Contributory Pension Scheme applicable to the Tamil Nadu State Government employees who are recruited on or after 1st April, 2003. 8. The grievance of the appellants is that advertisement was published by the Commission on 9th November, 2001 for the block year 1998--2002, pursuant to which after selection 51 candidates out of 53 (except the appellants) were appointed by order dated 24th September, 2002 and before these appointments could be made, the names of the appellants were also cleared by the Commission after due verification on 3rd September, 2002, but the State Government failed to include their names while appointments of other selected candidates, including those who are lower in order of merit, were made on 24th September, 2002 and without any reasonable cause/justification, their appointments were withheld for two/three years and finally they were appointed on 23rd August, 2005 and 23rd April, 2004 respectively and the delay in appointments in no manner could be attributable to the appellants and because of their later appointments, the Government has denied them to avail the benefit and become a member of the Scheme, 1978 which was applicable to the employees who were appointed on or before 1st April, 2003. 9. The counsel for the appellants further submits that in terms of their placement in order of merit in the select list despite later appointments in the year 2004 and 2005, still all benefits, including seniority, promotion, etc. were extended to the appellants. In the given circumstances, merely because there is delay in appointment would not deprive the appellants of their right to become a member of the Pension Scheme, 1978 claiming parity with the other candidates who had participated in the common process of selection held by the Commission pursuant to advertisement dated 9th September, 2001 and the High Court has committed a manifest error to proceed blindly on the premise that since they were appointed after 1st April, 2003, are not entitled to become member of Pension Scheme, 1978, which was applicable to the employees appointed on or before 1st April, 2003 and the same needs to be interfered with by this Court. 10. Learned counsel for the respondents, on the other hand, while supporting the finding recorded by the High Court under the impugned judgment, submits that the Scheme of Rules 1978 which has been amended by the notification dated 6th August, 2003, is not under challenge and that clearly demonstrates that it will be applicable only to such of the employees who were appointed on or before 1st April, 2003, to draw the benefits of the Tamil Nadu Pension Rules, 1978. Admittedly, the present appellants were appointed much after the new Contributory Pension Scheme was introduced, which was applicable to the employees recruited on or after 1st April, 2003, which alone will be applicable to the present appellants and this what the High Court has observed in the impugned judgment and needs no further interference by this Court. 11. After we have heard counsel for the parties and with their assistance perused the material available on record, in our considered view, the premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self--same selection process pursuant to advertisement dated 9th September, 2001 held for the post of APP Grade II and verification was made by the Commission in the case of the present appellants on 3rd September, 2002. 12. In the given circumstances, when those who are lower in order of merit to the appellants were appointed by an order dated 24th September, 2002, the appellants have no right of say in the matter of appointment and no justification has been tendered by the State respondent as to why their names were withheld for two/three years, when their names were cleared by the Commission on 3rd September, 2002 and sent to the State Government and finally appointments were made of the appellants on 23rd August, 2005 and 23rd April, 2004 respectively and the delay indeed in making appointments in the case of the present appellants in no manner could be attributable to them. 13. In the given circumstances, when all other candidates who had participated along with the appellants pursuant to advertisement dated 9th November, 2001, on the recommendations made by the Commission were appointed on 24th September, 2002 including those who are lower in the order of merit, there appears no reason for withholding the names of the present appellants and merely because they were appointed at a later point of time, would not deprive them from claiming to become a member of Tamil Nadu Pen- sion Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.
### Response:
1
### Explanation:
11. After we have heard counsel for the parties and with their assistance perused the material available on record, in our considered view, the premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self--same selection process pursuant to advertisement dated 9th September, 2001 held for the post of APP Grade II and verification was made by the Commission in the case of the present appellants on 3rd September, 2002.12. In the given circumstances, when those who are lower in order of merit to the appellants were appointed by an order dated 24th September, 2002, the appellants have no right of say in the matter of appointment and no justification has been tendered by the State respondent as to why their names were withheld for two/three years, when their names were cleared by the Commission on 3rd September, 2002 and sent to the State Government and finally appointments were made of the appellants on 23rd August, 2005 and 23rd April, 2004 respectively and the delay indeed in making appointments in the case of the present appellants in no manner could be attributable to them.13. In the given circumstances, when all other candidates who had participated along with the appellants pursuant to advertisement dated 9th November, 2001, on the recommendations made by the Commission were appointed on 24th September, 2002 including those who are lower in the order of merit, there appears no reason for withholding the names of the present appellants and merely because they were appointed at a later point of time, would not deprive them from claiming to become a member of Tamil Nadu Pen- sion Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.
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Commissioner of C. Ex Vs. Vetcare Organics P. Ltd | Commissioner:?As I have held that the subject goods are classifiable under Chapter Heading 23.02 of the Central Excise Tariff Act, 1985 and eligible for exemption from duty, I am not inclined to discuss whether the said goods are branded or not. However, as regards the products Halquinol and Chlortech/Sanitech, there is no dispute about their classification, the findings on the limitation holds good and no duty needs to be payable upto 31.10.1994 as there is no suppression or misdeclaration. Further to this, the whole exercise of demanding duty by the investigation is based on the fact that the subject goods in the show cause notice are branded and affixed with the logo of M/s. Tetragon Chemicals, who are not eligible for the SSI exemption. The assessee have argued that the brand name of Tetragon Chemicals have been registered only for Animal Feed Supplements and as such any person can use the brand name/ logo on their products other than Animal Feed Supplements. In view of the above, they are eligible for the SSI exemption inasmuch as they have used the said brand name in respect of their goods falling under Chapter 29 and 38. I find that their argument cannot be accepted after the amendment of Notification No. 1/93 with effect from 1.4.1994 and for easy reference, I reproduce the brand name clause: - ?The exemption contained in this Notification shall not apply to the specified goods bearing a brand name (registered or not) of another person.? 5. In the face of the aforesaid findings which were arrived at on the basis of record, we fail to understand as to how the CESTAT could still hold that the brand name VETCARE and the logo which were owned by M/s. Tetragon Chemie (P) Ltd., Bangalore registered in their name, belongs to the respondent. The CESTAT has merely gone by the assertion of the respondent that M/s. Tetragon Chemie (P) Ltd., Bangalore has permitted them to use this name. That permission shall not make the respondent owner of the brand name. It is thus, clear that the brand name belongs to M/s. Tetragon Chemie (P) Ltd., Bangalore, which brand name is allowed to be used by the respondent and in these circumstances, following Explanation 8 to the Notification No. 175/86 dated 1.3.1986 would clearly become applicable. This explanation defines brand name and reads as under: - ?Explanation VIII - ?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, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.? 6. On the basis of the aforesaid provision, this Court in a recent judgment dated 19.03.2015 passed in Civil Appeal No. 9157 of 2003 titled as Commissioner of Central Excise, Hyderabad IV v. M/s. Stangen Immuno Diagnostics held as under: - ?Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of the trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore, what follows form the reading of this Explanation is that if the brand name issued in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the mischief of Explanation VIII. It is no where stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to same goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground. 8. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as under: ?We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification.? It is clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise, Chandigarh-II vs. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.? 7. The offshoot of the aforesaid discussion is to hold that the order of the CESTAT is erroneous and warrants to be set aside. | 1[ds]8. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise,Vs. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held ashave today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of theis clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise,vs. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.The offshoot of the aforesaid discussion is to hold that the order of the CESTAT is erroneous and warrants to be set aside. | 1 | 1,543 | 289 | ### Instruction:
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Commissioner:?As I have held that the subject goods are classifiable under Chapter Heading 23.02 of the Central Excise Tariff Act, 1985 and eligible for exemption from duty, I am not inclined to discuss whether the said goods are branded or not. However, as regards the products Halquinol and Chlortech/Sanitech, there is no dispute about their classification, the findings on the limitation holds good and no duty needs to be payable upto 31.10.1994 as there is no suppression or misdeclaration. Further to this, the whole exercise of demanding duty by the investigation is based on the fact that the subject goods in the show cause notice are branded and affixed with the logo of M/s. Tetragon Chemicals, who are not eligible for the SSI exemption. The assessee have argued that the brand name of Tetragon Chemicals have been registered only for Animal Feed Supplements and as such any person can use the brand name/ logo on their products other than Animal Feed Supplements. In view of the above, they are eligible for the SSI exemption inasmuch as they have used the said brand name in respect of their goods falling under Chapter 29 and 38. I find that their argument cannot be accepted after the amendment of Notification No. 1/93 with effect from 1.4.1994 and for easy reference, I reproduce the brand name clause: - ?The exemption contained in this Notification shall not apply to the specified goods bearing a brand name (registered or not) of another person.? 5. In the face of the aforesaid findings which were arrived at on the basis of record, we fail to understand as to how the CESTAT could still hold that the brand name VETCARE and the logo which were owned by M/s. Tetragon Chemie (P) Ltd., Bangalore registered in their name, belongs to the respondent. The CESTAT has merely gone by the assertion of the respondent that M/s. Tetragon Chemie (P) Ltd., Bangalore has permitted them to use this name. That permission shall not make the respondent owner of the brand name. It is thus, clear that the brand name belongs to M/s. Tetragon Chemie (P) Ltd., Bangalore, which brand name is allowed to be used by the respondent and in these circumstances, following Explanation 8 to the Notification No. 175/86 dated 1.3.1986 would clearly become applicable. This explanation defines brand name and reads as under: - ?Explanation VIII - ?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, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.? 6. On the basis of the aforesaid provision, this Court in a recent judgment dated 19.03.2015 passed in Civil Appeal No. 9157 of 2003 titled as Commissioner of Central Excise, Hyderabad IV v. M/s. Stangen Immuno Diagnostics held as under: - ?Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of the trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore, what follows form the reading of this Explanation is that if the brand name issued in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the mischief of Explanation VIII. It is no where stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to same goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground. 8. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as under: ?We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification.? It is clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise, Chandigarh-II vs. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.? 7. The offshoot of the aforesaid discussion is to hold that the order of the CESTAT is erroneous and warrants to be set aside.
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1
### Explanation:
8. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise,Vs. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held ashave today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of theis clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise,vs. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.The offshoot of the aforesaid discussion is to hold that the order of the CESTAT is erroneous and warrants to be set aside.
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Century Spinning & Manufacturing Companyltd. And Anr Vs. The Ulhasnagar- Municipal Council And Anr | determination, and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried.9. The Company pleaded that the Ulhasnagar Municipality had "entered into a solemn arrangement" not to levy octroi duty for a period of seven years from the date of its imposition. The evidence relating to the undertaking was contained in public records. The Government of Maharashtra advised the Municipality that it was acting in violation of the terms of that undertaking. By its resolution the Municipality declined to abide by the undertaking of its predecessor.10. There is undoubtedly a clear distinction between a representation of an existing fact and a representation that something will be done in future. The former may, if it amounts to a representation as to some fact alleged at the time to be actually in existence, raise an estoppel, if another person alters his position relying upon that representation. A representation that something will be done in the future may result in a contract, if another person to whom it is addressed acts upon it. A representation that something will be done in future is not a representation that it is true when made. But between a representation of a fact which is untrue and a representation express or implied - to do something in future, there is no clear antithesis. A representation that something will be done in future may involve an existing intention to act in future in the manner represented. If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting therefor but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation.11. Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contract by a person who acts upon the promise: when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation if the contract be not in that form may be enforced against it in appropriate cases in equity. In Union of India v. M/s. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions, (1949) 1 KB 227 applied in India."The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to better its future executive action".We are in this case not concerned to deal with the question whether Denning, L. J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd., v. Howell, (1950) 1 All ER 538, where he observed at page 542:"Whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority, and he ought not to suffer, if they exceed it".It may be sufficient to observe that in appeal from that judgment Howell v.Falmouth Boat Construction Co. Ltd, (1950) 1 All ER 538 Lord Simonds observed after referring to the observations of Denning, L J.:"The illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy."* * * The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly: No".12. If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice.13. Mr. Gokhale appearing on behalf of the Municipality urged that the petition filed by the Company apparently raised questions of fact which in the view of the High Court could not appropriately be tried in the exercise of the extraordinary jurisdiction under Article 226. But the High Court has not said so, and on a review of the averments made in the petition this argument cannot be sustained. Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary. | 1[ds]12. If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to histhe High Court has not said so, and on a review of the averments made in the petition this argument cannot be sustained. Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary. | 1 | 2,324 | 145 | ### Instruction:
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determination, and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried.9. The Company pleaded that the Ulhasnagar Municipality had "entered into a solemn arrangement" not to levy octroi duty for a period of seven years from the date of its imposition. The evidence relating to the undertaking was contained in public records. The Government of Maharashtra advised the Municipality that it was acting in violation of the terms of that undertaking. By its resolution the Municipality declined to abide by the undertaking of its predecessor.10. There is undoubtedly a clear distinction between a representation of an existing fact and a representation that something will be done in future. The former may, if it amounts to a representation as to some fact alleged at the time to be actually in existence, raise an estoppel, if another person alters his position relying upon that representation. A representation that something will be done in the future may result in a contract, if another person to whom it is addressed acts upon it. A representation that something will be done in future is not a representation that it is true when made. But between a representation of a fact which is untrue and a representation express or implied - to do something in future, there is no clear antithesis. A representation that something will be done in future may involve an existing intention to act in future in the manner represented. If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting therefor but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation.11. Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contract by a person who acts upon the promise: when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation if the contract be not in that form may be enforced against it in appropriate cases in equity. In Union of India v. M/s. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions, (1949) 1 KB 227 applied in India."The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to better its future executive action".We are in this case not concerned to deal with the question whether Denning, L. J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd., v. Howell, (1950) 1 All ER 538, where he observed at page 542:"Whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority, and he ought not to suffer, if they exceed it".It may be sufficient to observe that in appeal from that judgment Howell v.Falmouth Boat Construction Co. Ltd, (1950) 1 All ER 538 Lord Simonds observed after referring to the observations of Denning, L J.:"The illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy."* * * The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly: No".12. If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice.13. Mr. Gokhale appearing on behalf of the Municipality urged that the petition filed by the Company apparently raised questions of fact which in the view of the High Court could not appropriately be tried in the exercise of the extraordinary jurisdiction under Article 226. But the High Court has not said so, and on a review of the averments made in the petition this argument cannot be sustained. Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.
### Response:
1
### Explanation:
12. If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to histhe High Court has not said so, and on a review of the averments made in the petition this argument cannot be sustained. Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.
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Karnataka Forest Devlp. Corporation Limited Vs. Cantreads Private Limited & Others | latex, which is the natural produce, hardened by application of the sulphuric acid and given the shape or form of sheets and thereafter dried with the help of smoke and graded into grades of I to V could not be treated as forest produce, for the process applied resulted in bringing out a commodity which was different from latex, and therefore, no tax could be levied on it. 4.Caoutchouc is included as one of the forest produce under subsection (7) of Section 2 of the Karnataka Forest Act. In Chambers English Dictionary, caoutchouc is defined as India-rubber, gum-elastic; the latex of rubber trees. In Random House Dictionary, rubber is defined as India rubber, natural rubber, gum-elastic caoutchouc a highly elastic, light cream or dark amber coloured, solid substance polymerized by the drying and coagulation of the latex or milky juice of rubber trees and plants. Caoutchouc is described in Encycl opedia Britannica as, the principal constituent of natural rubber and therefore sometimes called pure rubber. It occurs as a vegetable gum, mixed with 1/20 to 8 times its own weight of other substances. Caoutchouc is a white resilient solid; at 0-10 degree Celsius it is hard and opaque, but it becomes soft and translucent above 20 degree Celsius. In the same book Rubber is described as, an organic substance - obtained from natural sources or synthesized artificially which has the desirable properties of extensibility, stretchability, and toughness. Previously known as caoutchouc, a term that has become limited to the chemically pure form of the substance. In Encyclopedia of Social Sciences, Vol. XIII- XIV it is de scribed thus, "Latex, which is not the sap of the tree but a milky fluid contained in the bark, is obtained by narrow incisions in the bark. During the period of high prices trees were tapped once or even twice a day. With lower prices it has become customary to tap less frequently, but over a wider circumference of the tree. The trees are ordinarily rested for two months or more each year. After the latex has been gathered it is brought to the plantation warehouses and coagulated by acetic acid or some other chemical. The resulting rubber comes on the market as crepe rubber or, if it has gone through a smoking process, as smoked sheet." * 5. Caoutchouc is, thus natural rubber which includes latex. The natural rubber or latex is milky flu id obtained by incisions, in the bark of trees. It can not remain as such for long therefore it needs processing. 6. In the Rubber Growers Companion 1991 it is mentioned that the main crop for the rubber tree is latex, a milky white dispersion of rubber in water which is harvested by the process of tapping. The latex that flows out from the rubber trees on tapping is channeled into a container attached to them. The latex gets dried up on the tapping panel (tree lace) and the collection cups (shell scrap) form part of the crop and are collected by the tapper. The different kinds of crops harvested from rubber plantations are highly susceptible to bacterial action due to contamination on keeping. Therefore, it is essential to process them into forms that will allow safe storage and marketing. One of the marketable items is ribbed sheet rubber. It further discusses how the latex is converted into ribbed sheets. Latex is coagulated in suitable containers into thin slabs of a coagulum and sheet through a set of smooth rollers followed by a grooved set and dried to obtain ribbed sheet rubbers; depending upon the drying method sheets rubbers are classified into two ribbed smoked sheets and the air dried sheets. It is further mentioned that the ribbed sheets after 2 or 3 hours are put in the smoke-house where the certain degree of temperature is maintained. The completely dried sheets are removed to the packing sheets where they are carefully inspected and classified according to standards published by the Rubber Manufacturers Association. 7. The High Court found that since what was sold by the appellant was not rubber obtained from the trees but sheet s or blocks of rubber which were chemically and mechanically processed it could not be held to be forest produce. The High Court applied the test of commercial parlance and held that where latex produced from the tree underwent processing howsoever meager it was the resultant produce obtained by addition of sulphuric acid could not be treated to be forest produce. It was further found that since Government rubber plantations itself treated grade rubber sheets as different from wet latex while selling the same in auction it could not claim that the latex after processing remained the same.Neither reasoning appears to be well founded. The meaning of the word caoutchouc has been discussed. Latex is the modem name for caoutchouc. It is nothing but natural rubber. Caoutchouc or latex means not only milky substance obtained from the trees but it included all milky substance processed, till it is made marketable. Since the processing does not result in bringing out a new comm odity but it preserves the same and renders it fit for being marketed, it does not change its character. It was caoutchouc or latex when it was obtained from the trees, it continued to be caoutchouc or latex when it was treated by sulphuric acid and continued to be so even after it is dried with smoke to obtain the shape of sheets.8. The test of commercial parlance while considering entries in Sales Tax Act was evolved as the tax under the Sales Tax enactments is normally either on sale or purchase or on manufacture or import etc. Therefore, it is the understanding or the knowledge of the item by the common man or persons dealing in it in the market and not in the technical or botanical sense which was accepted by this Court as the deciding factor. But that test cannot be applied while considering the definition of forest produce. | 1[ds]7. The High Court found that since what was sold by the appellant was not rubber obtained from the trees but sheet s or blocks of rubber which were chemically and mechanically processed it could not be held to be forest produce. The High Court applied the test of commercial parlance and held that where latex produced from the tree underwent processing howsoever meager it was the resultant produce obtained by addition of sulphuric acid could not be treated to be forest produce. It was further found that since Government rubber plantations itself treated grade rubber sheets as different from wet latex while selling the same in auction it could not claim that the latex after processing remained the same.Neither reasoning appears to be well founded. The meaning of the word caoutchouc has been discussed. Latex is the modem name for caoutchouc. It is nothing but natural rubber. Caoutchouc or latex means not only milky substance obtained from the trees but it included all milky substance processed, till it is made marketable. Since the processing does not result in bringing out a new comm odity but it preserves the same and renders it fit for being marketed, it does not change its character. It was caoutchouc or latex when it was obtained from the trees, it continued to be caoutchouc or latex when it was treated by sulphuric acid and continued to be so even after it is dried with smoke to obtain the shape of sheets.8. The test of commercial parlance while considering entries in Sales Tax Act was evolved as the tax under the Sales Tax enactments is normally either on sale or purchase or on manufacture or import etc. Therefore, it is the understanding or the knowledge of the item by the common man or persons dealing in it in the market and not in the technical or botanical sense which was accepted by this Court as the deciding factor. But that test cannot be applied while considering the definition of forest produce. | 1 | 1,625 | 358 | ### Instruction:
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latex, which is the natural produce, hardened by application of the sulphuric acid and given the shape or form of sheets and thereafter dried with the help of smoke and graded into grades of I to V could not be treated as forest produce, for the process applied resulted in bringing out a commodity which was different from latex, and therefore, no tax could be levied on it. 4.Caoutchouc is included as one of the forest produce under subsection (7) of Section 2 of the Karnataka Forest Act. In Chambers English Dictionary, caoutchouc is defined as India-rubber, gum-elastic; the latex of rubber trees. In Random House Dictionary, rubber is defined as India rubber, natural rubber, gum-elastic caoutchouc a highly elastic, light cream or dark amber coloured, solid substance polymerized by the drying and coagulation of the latex or milky juice of rubber trees and plants. Caoutchouc is described in Encycl opedia Britannica as, the principal constituent of natural rubber and therefore sometimes called pure rubber. It occurs as a vegetable gum, mixed with 1/20 to 8 times its own weight of other substances. Caoutchouc is a white resilient solid; at 0-10 degree Celsius it is hard and opaque, but it becomes soft and translucent above 20 degree Celsius. In the same book Rubber is described as, an organic substance - obtained from natural sources or synthesized artificially which has the desirable properties of extensibility, stretchability, and toughness. Previously known as caoutchouc, a term that has become limited to the chemically pure form of the substance. In Encyclopedia of Social Sciences, Vol. XIII- XIV it is de scribed thus, "Latex, which is not the sap of the tree but a milky fluid contained in the bark, is obtained by narrow incisions in the bark. During the period of high prices trees were tapped once or even twice a day. With lower prices it has become customary to tap less frequently, but over a wider circumference of the tree. The trees are ordinarily rested for two months or more each year. After the latex has been gathered it is brought to the plantation warehouses and coagulated by acetic acid or some other chemical. The resulting rubber comes on the market as crepe rubber or, if it has gone through a smoking process, as smoked sheet." * 5. Caoutchouc is, thus natural rubber which includes latex. The natural rubber or latex is milky flu id obtained by incisions, in the bark of trees. It can not remain as such for long therefore it needs processing. 6. In the Rubber Growers Companion 1991 it is mentioned that the main crop for the rubber tree is latex, a milky white dispersion of rubber in water which is harvested by the process of tapping. The latex that flows out from the rubber trees on tapping is channeled into a container attached to them. The latex gets dried up on the tapping panel (tree lace) and the collection cups (shell scrap) form part of the crop and are collected by the tapper. The different kinds of crops harvested from rubber plantations are highly susceptible to bacterial action due to contamination on keeping. Therefore, it is essential to process them into forms that will allow safe storage and marketing. One of the marketable items is ribbed sheet rubber. It further discusses how the latex is converted into ribbed sheets. Latex is coagulated in suitable containers into thin slabs of a coagulum and sheet through a set of smooth rollers followed by a grooved set and dried to obtain ribbed sheet rubbers; depending upon the drying method sheets rubbers are classified into two ribbed smoked sheets and the air dried sheets. It is further mentioned that the ribbed sheets after 2 or 3 hours are put in the smoke-house where the certain degree of temperature is maintained. The completely dried sheets are removed to the packing sheets where they are carefully inspected and classified according to standards published by the Rubber Manufacturers Association. 7. The High Court found that since what was sold by the appellant was not rubber obtained from the trees but sheet s or blocks of rubber which were chemically and mechanically processed it could not be held to be forest produce. The High Court applied the test of commercial parlance and held that where latex produced from the tree underwent processing howsoever meager it was the resultant produce obtained by addition of sulphuric acid could not be treated to be forest produce. It was further found that since Government rubber plantations itself treated grade rubber sheets as different from wet latex while selling the same in auction it could not claim that the latex after processing remained the same.Neither reasoning appears to be well founded. The meaning of the word caoutchouc has been discussed. Latex is the modem name for caoutchouc. It is nothing but natural rubber. Caoutchouc or latex means not only milky substance obtained from the trees but it included all milky substance processed, till it is made marketable. Since the processing does not result in bringing out a new comm odity but it preserves the same and renders it fit for being marketed, it does not change its character. It was caoutchouc or latex when it was obtained from the trees, it continued to be caoutchouc or latex when it was treated by sulphuric acid and continued to be so even after it is dried with smoke to obtain the shape of sheets.8. The test of commercial parlance while considering entries in Sales Tax Act was evolved as the tax under the Sales Tax enactments is normally either on sale or purchase or on manufacture or import etc. Therefore, it is the understanding or the knowledge of the item by the common man or persons dealing in it in the market and not in the technical or botanical sense which was accepted by this Court as the deciding factor. But that test cannot be applied while considering the definition of forest produce.
### Response:
1
### Explanation:
7. The High Court found that since what was sold by the appellant was not rubber obtained from the trees but sheet s or blocks of rubber which were chemically and mechanically processed it could not be held to be forest produce. The High Court applied the test of commercial parlance and held that where latex produced from the tree underwent processing howsoever meager it was the resultant produce obtained by addition of sulphuric acid could not be treated to be forest produce. It was further found that since Government rubber plantations itself treated grade rubber sheets as different from wet latex while selling the same in auction it could not claim that the latex after processing remained the same.Neither reasoning appears to be well founded. The meaning of the word caoutchouc has been discussed. Latex is the modem name for caoutchouc. It is nothing but natural rubber. Caoutchouc or latex means not only milky substance obtained from the trees but it included all milky substance processed, till it is made marketable. Since the processing does not result in bringing out a new comm odity but it preserves the same and renders it fit for being marketed, it does not change its character. It was caoutchouc or latex when it was obtained from the trees, it continued to be caoutchouc or latex when it was treated by sulphuric acid and continued to be so even after it is dried with smoke to obtain the shape of sheets.8. The test of commercial parlance while considering entries in Sales Tax Act was evolved as the tax under the Sales Tax enactments is normally either on sale or purchase or on manufacture or import etc. Therefore, it is the understanding or the knowledge of the item by the common man or persons dealing in it in the market and not in the technical or botanical sense which was accepted by this Court as the deciding factor. But that test cannot be applied while considering the definition of forest produce.
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Inder Singh Vs. Gurdial Singh | is not a correct statement of the law, the statement there being that the two elements which are essential to constitute the factum of adoption are (i) an intention to appoint an heir and (ii) an act of association (see p. 497). We consider that it is unnecessary in this case to examine the more general question of the exact scope and ambit of the rule in other parts of the Punjab; for we have unimpeachable evidence of the scope of the rule in the district of Ludhiana. In the Customary Law of the Ludhiana District (rewaj-i-am), compiled and attested by J. M. Dunnett, Settlement Officer, the formalities of customary adoption amongst Jats of the Ludhiana district are stated in the form of the following question and answer (see p. 102) :"Question 68. What formalities are necessary for adoption ?Answer-As adoption is not a religious ceremony, no special formalities are considered necessary. The adopter usually calls the neighbours and his relations together, and distributes gur, saying that he has adopted (god lia) so and so. Sometimes a deed of adoption is executed. But a declaration of adoption and general treatment as a son are looked upon as sufficient."The compiler then observes :"Case-law agrees. It is well established principle that customary adoption requires absolutely no formalities. The evidence required to establish the factum of adoption is merely evidence of intention clearly expressed and treatment shown.In 79 Pun Re 1882 (Jats of Manza Baga Kalan tahsil Samrala) the execution of a deed and general conduct were held sufficient, but in 94 Pun Re 1893, among Dhaliwal Jats, the mere execution of a deed unaccompanied by precedent or subsequent treatment was held insufficient."8. Mr. Achhru Ram has very fairly conceded that the statement of customary law of the Ludhiana district in the rewaj-i-am is authoritative, though the many details mentioned in the answers given are not necessarily mandatory.It is clear, however that so far as the Jats of Ludhiana district are concerned the formalities necessary for adoption are, firstly, a declaration of adoption and, secondly, general treatment of the appointed heir as a son. A mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment is insufficient. That being the position, the High Court was clearly right in its decision.9. The same position is established by the authorities hearing on the subject The earliest decision to which our attention has been drawn is Gurbachna v. Bujha, 42 Pun Re 1911, p. 151. In that case it was stated that where the power of customary adoption by a sonless proprietor was not disputed, all that was necessary to constitute an adoption was the clear expression of an intention on the part of the adoptive father to adopt the boy concerned as his son and a sufficient manifestation of that intention by the execution and registration of a deed of adoption coupled with a clear declaration in Court and subsequent treatment as adopted son. It was pointed out, however, that in a case where soon after the execution of the deed of adoption the reversioners of the adoptive father brought a suit, it was not reasonable to demand proof of subsequent treatment.In the case before us, Nathu cried three years after the execution of the deed. He left Inder Singh a few weeks after the execution of the deed, cancelled the creed within about five months and instead of treating Inder Singh as his son repudiated any such association with him. In these circumstances the High Court lightly held that there was no sufficient manifestation of the intention to adopt; Inder Singh as his son by Nathu.In Baj Singh v. Partap Singh 77 Ind Cas 473: (AIR 1923 Lah 497 (2) ), it was observed :"There is ample authority for holding that the appointment in order to be valid must be made in some unequivocal and customary manner and the execution of a deed coupled with a long course of treatment has always been recognised as one of the modes of manifesting such an appointment."In Chhajju v. Mehr Singh, : 31 Pun LR 997: (AIR 1930 Lah 1072), it was held that the execution of a deed by the adoptive father was not enough and continuous subsequent treatment not having been proved, the adoption was not established. In Chanan Singh v. Buta Singh. AIR 1935 Lah 83 the decision proceeded on the customary law of the district of Jullundur and on that basis it was held that the appointment should be manifested by some declaration or course of treatment evidencing an unequivocal intention to appoint a specified person as heir; it was pointed out that the question and answer recorded in the rewaj-i-am concerned showed that the essence of the customary rule was that it should be clearly declared. Their Lordships were dealing with a case in which there was not merely a public declaration in Court but also subsequent treatment of the appointed heir as a son by the adoptive father. In Kishan Singh Taru, (AIR 1949 EP 342), it was observed that all that was necessary to constitute an adoption under customary law was the clear expression of intention on the adoptive fathers part to adopt the boy concerned as his son and the execution of the deed of adoption coupled with a clear declaration before a registering officer and continuous subsequent treatment as adopted son were sufficient manifestation of the intention.10. We are of the view that the High Court rightly held that in the circumstances of this case the declaration made by Nathu before the village Panchayat on March 24, 1946 and the execution of a deed of adoption which he cancelled within a short time were not a sufficient manifestation of the intention of Nathu to adopt Inder Singh as his son. There was no evidence that Nathu Singh treated Inder Singh as his son; on the contrary, there was evidence to show that he repudiated the declaration that he had earlier made. | 0[ds]We consider that it is unnecessary in this case to examine the more general question of the exact scope and ambit of the rule in other parts of the Punjab; for we have unimpeachable evidence of the scope of the rule in the district ofis clear, however that so far as the Jats of Ludhiana district are concerned the formalities necessary for adoption are, firstly, a declaration of adoption and, secondly, general treatment of the appointed heir as a son. A mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment is insufficient. That being the position, the High Court was clearly right in itsthe case before us, Nathu cried three years after the execution of the deed. He left Inder Singh a few weeks after the execution of the deed, cancelled the creed within about five months and instead of treating Inder Singh as his son repudiated any such association with him. In these circumstances the High Court lightly held that there was no sufficient manifestation of the intention to adopt; Inder Singh as his son by Nathu.We are of the view that the High Court rightly held that in the circumstances of this case the declaration made by Nathu before the village Panchayat on March 24, 1946 and the execution of a deed of adoption which he cancelled within a short time were not a sufficient manifestation of the intention of Nathu to adopt Inder Singh as his son. There was no evidence that Nathu Singh treated Inder Singh as his son; on the contrary, there was evidence to show that he repudiated the declaration that he had earlier made. | 0 | 2,405 | 302 | ### 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:
is not a correct statement of the law, the statement there being that the two elements which are essential to constitute the factum of adoption are (i) an intention to appoint an heir and (ii) an act of association (see p. 497). We consider that it is unnecessary in this case to examine the more general question of the exact scope and ambit of the rule in other parts of the Punjab; for we have unimpeachable evidence of the scope of the rule in the district of Ludhiana. In the Customary Law of the Ludhiana District (rewaj-i-am), compiled and attested by J. M. Dunnett, Settlement Officer, the formalities of customary adoption amongst Jats of the Ludhiana district are stated in the form of the following question and answer (see p. 102) :"Question 68. What formalities are necessary for adoption ?Answer-As adoption is not a religious ceremony, no special formalities are considered necessary. The adopter usually calls the neighbours and his relations together, and distributes gur, saying that he has adopted (god lia) so and so. Sometimes a deed of adoption is executed. But a declaration of adoption and general treatment as a son are looked upon as sufficient."The compiler then observes :"Case-law agrees. It is well established principle that customary adoption requires absolutely no formalities. The evidence required to establish the factum of adoption is merely evidence of intention clearly expressed and treatment shown.In 79 Pun Re 1882 (Jats of Manza Baga Kalan tahsil Samrala) the execution of a deed and general conduct were held sufficient, but in 94 Pun Re 1893, among Dhaliwal Jats, the mere execution of a deed unaccompanied by precedent or subsequent treatment was held insufficient."8. Mr. Achhru Ram has very fairly conceded that the statement of customary law of the Ludhiana district in the rewaj-i-am is authoritative, though the many details mentioned in the answers given are not necessarily mandatory.It is clear, however that so far as the Jats of Ludhiana district are concerned the formalities necessary for adoption are, firstly, a declaration of adoption and, secondly, general treatment of the appointed heir as a son. A mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment is insufficient. That being the position, the High Court was clearly right in its decision.9. The same position is established by the authorities hearing on the subject The earliest decision to which our attention has been drawn is Gurbachna v. Bujha, 42 Pun Re 1911, p. 151. In that case it was stated that where the power of customary adoption by a sonless proprietor was not disputed, all that was necessary to constitute an adoption was the clear expression of an intention on the part of the adoptive father to adopt the boy concerned as his son and a sufficient manifestation of that intention by the execution and registration of a deed of adoption coupled with a clear declaration in Court and subsequent treatment as adopted son. It was pointed out, however, that in a case where soon after the execution of the deed of adoption the reversioners of the adoptive father brought a suit, it was not reasonable to demand proof of subsequent treatment.In the case before us, Nathu cried three years after the execution of the deed. He left Inder Singh a few weeks after the execution of the deed, cancelled the creed within about five months and instead of treating Inder Singh as his son repudiated any such association with him. In these circumstances the High Court lightly held that there was no sufficient manifestation of the intention to adopt; Inder Singh as his son by Nathu.In Baj Singh v. Partap Singh 77 Ind Cas 473: (AIR 1923 Lah 497 (2) ), it was observed :"There is ample authority for holding that the appointment in order to be valid must be made in some unequivocal and customary manner and the execution of a deed coupled with a long course of treatment has always been recognised as one of the modes of manifesting such an appointment."In Chhajju v. Mehr Singh, : 31 Pun LR 997: (AIR 1930 Lah 1072), it was held that the execution of a deed by the adoptive father was not enough and continuous subsequent treatment not having been proved, the adoption was not established. In Chanan Singh v. Buta Singh. AIR 1935 Lah 83 the decision proceeded on the customary law of the district of Jullundur and on that basis it was held that the appointment should be manifested by some declaration or course of treatment evidencing an unequivocal intention to appoint a specified person as heir; it was pointed out that the question and answer recorded in the rewaj-i-am concerned showed that the essence of the customary rule was that it should be clearly declared. Their Lordships were dealing with a case in which there was not merely a public declaration in Court but also subsequent treatment of the appointed heir as a son by the adoptive father. In Kishan Singh Taru, (AIR 1949 EP 342), it was observed that all that was necessary to constitute an adoption under customary law was the clear expression of intention on the adoptive fathers part to adopt the boy concerned as his son and the execution of the deed of adoption coupled with a clear declaration before a registering officer and continuous subsequent treatment as adopted son were sufficient manifestation of the intention.10. We are of the view that the High Court rightly held that in the circumstances of this case the declaration made by Nathu before the village Panchayat on March 24, 1946 and the execution of a deed of adoption which he cancelled within a short time were not a sufficient manifestation of the intention of Nathu to adopt Inder Singh as his son. There was no evidence that Nathu Singh treated Inder Singh as his son; on the contrary, there was evidence to show that he repudiated the declaration that he had earlier made.
### Response:
0
### Explanation:
We consider that it is unnecessary in this case to examine the more general question of the exact scope and ambit of the rule in other parts of the Punjab; for we have unimpeachable evidence of the scope of the rule in the district ofis clear, however that so far as the Jats of Ludhiana district are concerned the formalities necessary for adoption are, firstly, a declaration of adoption and, secondly, general treatment of the appointed heir as a son. A mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment is insufficient. That being the position, the High Court was clearly right in itsthe case before us, Nathu cried three years after the execution of the deed. He left Inder Singh a few weeks after the execution of the deed, cancelled the creed within about five months and instead of treating Inder Singh as his son repudiated any such association with him. In these circumstances the High Court lightly held that there was no sufficient manifestation of the intention to adopt; Inder Singh as his son by Nathu.We are of the view that the High Court rightly held that in the circumstances of this case the declaration made by Nathu before the village Panchayat on March 24, 1946 and the execution of a deed of adoption which he cancelled within a short time were not a sufficient manifestation of the intention of Nathu to adopt Inder Singh as his son. There was no evidence that Nathu Singh treated Inder Singh as his son; on the contrary, there was evidence to show that he repudiated the declaration that he had earlier made.
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Khatoon & Others Vs. The State of U.P. Through Principal Secretary & Others | Court in the case of Gajraj (supra), namely, allotment of developed abadi plot to the appellants.38. In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.39. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].40. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.41. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.42. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.43. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.44. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.45. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining of non-compliance of the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non-compliance was made out.46. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.47. Indeed, when the landowners, in whose favour the order was passed by the High Court for allotment of such plot, could not get the plot then, in such event, there arise no occasion for the appellants herein to claim such relief for want of any factual and legal basis in their favour.48. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.49. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devis case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.50. That apart, there is no basis for the appellants to press in service the principle underlined in Article 14 in such cases for the simple reason that firstly, Article 14 does not apply to such cases; and secondly, there is no similarity between the case of those landowners, who filed the writ petitions and the present appellants, who did not file the writ petitions. Though the High Court, in Gajrajs case (supra) decided the rights of both categories of landowners but the cases of both stood on a different footing. It is for these reasons, the appellants were not held entitled to take benefit of condition No. 3 (a) and (b) of the case of Gajraj (supra) which was meant for the writ petitioners therein but not for the appellants. However, the appellants were held entitled to take the benefit of only condition No. 4 (a) and (b) of the said judgment and which they did take by accepting the additional compensation payable at the rate of 64.70%.51. In our view, therefore substantial justice was done to all the landowners including the appellants, as observed in para 49 of Savitri Devis case (supra).52. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants plea for granting them the relief then it would amount to passing an order contrary to this Courts directions contained in para 50 of the order passed in Savitri Devis case (supra). | 0[ds]35. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the submissions urged by the learned counsel for the appellants (landowners).36. As mentioned above, it is not in dispute that out of the two directions given by the High Court in the case of Gajraj (supra), one direction, namely, award of additional compensation payable at the rate of 64.70% to every landowner was already implemented by the State/Authority and accordingly payment was also made to the appellants notwithstanding dismissal of their writ petitions. In other words, the appellant got the partial benefit of the order passed in Gajrajs case (supra) even without contest.In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.39. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].40. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.41. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.42. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.43. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.44. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.45. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining ofof the directions of this Court but this Court dismissed the contempt petition holding therein that no case ofwas made out.46. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.47. Indeed, when the landowners, in whose favour the order was passed by the High Court for allotment of such plot, could not get the plot then, in such event, there arise no occasion for the appellants herein to claim such relief for want of any factual and legal basis in their favour.48. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.49. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devis case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.50. That apart, there is no basis for the appellants to press in service the principle underlined in Article 14 in such cases for the simple reason that firstly, Article 14 does not apply to such cases; and secondly, there is no similarity between the case of those landowners, who filed the writ petitions and the present appellants, who did not file the writ petitions. Though the High Court, in Gajrajs case (supra) decided the rights of both categories of landowners but the cases of both stood on a different footing. It is for these reasons, the appellants were not held entitled to take benefit of condition No. 3 (a) and (b) of the case of Gajraj (supra) which was meant for the writ petitioners therein but not for the appellants. However, the appellants were held entitled to take the benefit of only condition No. 4 (a) and (b) of the said judgment and which they did take by accepting the additional compensation payable at the rate of 64.70%.51. In our view, therefore substantial justice was done to all the landowners including the appellants, as observed in para 49 of Savitri Devis case (supra).52. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants plea for granting them the relief then it would amount to passing an order contrary to this Courts directions contained in para 50 of the order passed in Savitri Devis case (supra). | 0 | 4,199 | 1,259 | ### 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 in the case of Gajraj (supra), namely, allotment of developed abadi plot to the appellants.38. In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.39. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].40. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.41. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.42. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.43. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.44. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.45. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining of non-compliance of the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non-compliance was made out.46. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.47. Indeed, when the landowners, in whose favour the order was passed by the High Court for allotment of such plot, could not get the plot then, in such event, there arise no occasion for the appellants herein to claim such relief for want of any factual and legal basis in their favour.48. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.49. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devis case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.50. That apart, there is no basis for the appellants to press in service the principle underlined in Article 14 in such cases for the simple reason that firstly, Article 14 does not apply to such cases; and secondly, there is no similarity between the case of those landowners, who filed the writ petitions and the present appellants, who did not file the writ petitions. Though the High Court, in Gajrajs case (supra) decided the rights of both categories of landowners but the cases of both stood on a different footing. It is for these reasons, the appellants were not held entitled to take benefit of condition No. 3 (a) and (b) of the case of Gajraj (supra) which was meant for the writ petitioners therein but not for the appellants. However, the appellants were held entitled to take the benefit of only condition No. 4 (a) and (b) of the said judgment and which they did take by accepting the additional compensation payable at the rate of 64.70%.51. In our view, therefore substantial justice was done to all the landowners including the appellants, as observed in para 49 of Savitri Devis case (supra).52. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants plea for granting them the relief then it would amount to passing an order contrary to this Courts directions contained in para 50 of the order passed in Savitri Devis case (supra).
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petitions. In other words, the appellant got the partial benefit of the order passed in Gajrajs case (supra) even without contest.In our considered opinion, the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the following reasons.39. First, the High Court in the case of Gajraj (supra) had, in express terms, granted the relief of allotment of developed abadi plot confining it only to the landowners, who had filed the writ petitions. In other words, the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitioners [see condition No. 3(a) and (b)].40. Second, so far as the cases relating to second category of landowners, who had not challenged the acquisition proceedings (like the appellants herein) were concerned, the High Court dealt with their cases separately and accordingly issued directions which are contained in condition No. 4(a) and (b) of the order.41. In condition No. 4(a) and (b), the High Court, in express terms, directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in condition No. 3(a) and (b) also to second category of landowners or not.42. In other words, the High Court, in express terms, declined to extend the grant of any relief to the landowners, who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not.43. It is, therefore, clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not.44. Third, as mentioned supra, the Authority, in compliance with the directions, decided to extend the benefit in relation to payment of an additional compensation at the rate of 64.70% and accordingly it was paid also. On the other hand, the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners.45. Fourth, it is not in dispute, being a matter of record, that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in the case of Gajraj (supra) and by this Court in Savitri Devi (supra), the landowners filed the contempt petition against the Authority complaining ofof the directions of this Court but this Court dismissed the contempt petition holding therein that no case ofwas made out.46. In our view, the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief, it is necessary for the writ petitioners to plead and prove their legal right, which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here.47. Indeed, when the landowners, in whose favour the order was passed by the High Court for allotment of such plot, could not get the plot then, in such event, there arise no occasion for the appellants herein to claim such relief for want of any factual and legal basis in their favour.48. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly, there is no dispute that the State paid all statutory compensation, which is payable under the Act, to every landowner. Not only that every landowner also got additional compensation at the rate of 64.70% over and above what was payable to them under the Act.49. The reliefs in the case of Gajraj (supra) were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners, who had filed the writ petitions. Even this Court in Savitri Devis case (supra) held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only.50. That apart, there is no basis for the appellants to press in service the principle underlined in Article 14 in such cases for the simple reason that firstly, Article 14 does not apply to such cases; and secondly, there is no similarity between the case of those landowners, who filed the writ petitions and the present appellants, who did not file the writ petitions. Though the High Court, in Gajrajs case (supra) decided the rights of both categories of landowners but the cases of both stood on a different footing. It is for these reasons, the appellants were not held entitled to take benefit of condition No. 3 (a) and (b) of the case of Gajraj (supra) which was meant for the writ petitioners therein but not for the appellants. However, the appellants were held entitled to take the benefit of only condition No. 4 (a) and (b) of the said judgment and which they did take by accepting the additional compensation payable at the rate of 64.70%.51. In our view, therefore substantial justice was done to all the landowners including the appellants, as observed in para 49 of Savitri Devis case (supra).52. In our opinion, therefore, there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants plea for granting them the relief then it would amount to passing an order contrary to this Courts directions contained in para 50 of the order passed in Savitri Devis case (supra).
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Allahabad Canning Company Vs. Union of India | to the Fund a refund shall be made from the Fund to the buyer of Levy Sugar from whom any excess realisation was made by the producer or dealer,Provided that no buyer shall be entitled to claim as refund under this sub-section if he-(a) being the wholesale dealer, had passed on the incidence of such excess over the controlled or fair price of levy sugar to the retail dealer by whom the price of such sugar was paid or(b) being a retail dealer, had passed on the incidence of such excess over the cont rolled or fair price of levy sugar to the consumer by whom the price of such sugar was paid."2. Since a sum of Rs. 22681.88 represented excess realisation made by K.M. Sugar Mills Limited from the appellants and this amount was credited to the Fund by the Registrar of the High Court, the appellants filed an application in form IV making a claim for refund of this amount from the Fund. This application was filed by the appellants, on 30th April, 1979 , admittedly within the prescribed period of six months. The Central Government, however, rejected the claim made by the appellants on the ground that they had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on by them to the consumers of the end products.3. The appellants thereupon preferred a Writ Petition in the High Court but the High Court also rejected the Writ Petition on the same ground, namely, that according to the finding re corded by the Central Government the appellants had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on to the consumers of the end products and since this was a finding of fact base on evaluation of the material and evidence produced by the appellants before the competent authority, the High Court would not be justified in interfering with the order of the Central Government. The appellants thereupon preferred the present appeal with special leave obtained from this Court.4. The main point of controversy between the parties centres round the true interpretation of S. 6 Sub-section (1) of the Equalisation Fund Act. This provision lays down as a condition precedent to its applicability that the excess realisation made by the manufacturer of sugar should have been credited to the Fund. Now, the application made by the appellants in from IV stated in so many terms that the amount in question had been de posited by the Registrar of the High Court in terms of the Levy Sugar Price Equalisation Fund Rules, 1972, through the Chief Pay &Accounts Officer, Govt. Of India, Ministry of Agriculture &Irrigation, Department of Food, New Delhi. This statement was not at any time disputed on behalf of the Central Government either in the order made by the Central Government rejecting the claim of the appellants or in the proceedings before the High Court. It is indisputable that a sum of Rs. 2268 1.88 representing the excess realisation made from the appellants by K.M. Sugar Mills Limited was credited to the Fund by the Registrar of the High Court. And in any event, this must be presumed to have been done because the Equalisation Fund Act having been enacted for this purpose, the Registrar of the High Court would naturally be expected to carry out his obligation under the statute by depositing the amount of excess realisation recovered by him under the bank guarantee given by K.M. Sugar Mills Limited. There can, therefore, be no doubt that in terms of Section 6, Sub-section (1) the appellants were entitled to claim refund of the sum of Rs. 22681.88 from the Fund. The only question is whether the proviso to section 6, Sub-section (1) precluded the appellants from claiming refund of that amount. The proviso on its plain terms applied only where the party claiming refund of the amount of excess realisation is a wholesale or a retail dealer who has passed on the incidence of the excess over the controlled price of levy sugar to the retail dealer or to the consumer, as the case may be. The proviso obviously cannot apply to a case where a claim for refund has been made by a consumer of sugar from whom excess realisation has been made by the manufacturer of sugar. The appellants were admittedly consumers of sugar and not dealers in sugar and since they were not dealers in sugar, there could be no question of any incidence of excess being passed by them to the retail dealer or to the consumer.The learned counsel appearing on behalf of the respondent contended that the excess over the controlled or fair price of levy sugar must have been passed on by the appellants to the consumer when they sold the manufactured products to them, because the higher price paid by them for the sugar purchased from K.M. Sugar Mills Limited must have been taken into account by them in fixing the price of the manufactured products. This may be so or may not be so. It is not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6, Sub-section (1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where a dealer-whether whole sale or retail-sells sugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Sub- section (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum of Fund.5 | 1[ds]The only question is whether the proviso to section 6, Sub-section (1) precluded the appellants from claiming refund of that amount.The proviso on its plain terms applied only where the party claiming refund of the amount of excess realisation is a wholesale or a retail dealer who has passed on the incidence of the excess over the controlled price of levy sugar to the retail dealer or to the consumer, as the case may be. The proviso obviously cannot apply to a case where a claim for refund has been made by a consumer of sugar from whom excess realisation has been made by the manufacturer of sugar. The appellants were admittedly consumers of sugar and not dealers in sugar and since they were not dealers in sugar, there could be no question of any incidence of excess being passed by them to the retail dealer or to thelearned counsel appearing on behalf of the respondent contended that the excess over the controlled or fair price of levy sugar must have been passed on by the appellants to the consumer when they sold the manufactured products to them, because the higher price paid by them for the sugar purchased from K.M. Sugar Mills Limited must have been taken into account by them in fixing the price of the manufactured products.This may be so or may not be so. It is not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6, Sub-section (1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where a dealer-whether whole sale or retail-sells sugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Sub- section (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum ofis not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6,(1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where awhole sale orsugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Subsection (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum of | 1 | 2,052 | 553 | ### 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:
to the Fund a refund shall be made from the Fund to the buyer of Levy Sugar from whom any excess realisation was made by the producer or dealer,Provided that no buyer shall be entitled to claim as refund under this sub-section if he-(a) being the wholesale dealer, had passed on the incidence of such excess over the controlled or fair price of levy sugar to the retail dealer by whom the price of such sugar was paid or(b) being a retail dealer, had passed on the incidence of such excess over the cont rolled or fair price of levy sugar to the consumer by whom the price of such sugar was paid."2. Since a sum of Rs. 22681.88 represented excess realisation made by K.M. Sugar Mills Limited from the appellants and this amount was credited to the Fund by the Registrar of the High Court, the appellants filed an application in form IV making a claim for refund of this amount from the Fund. This application was filed by the appellants, on 30th April, 1979 , admittedly within the prescribed period of six months. The Central Government, however, rejected the claim made by the appellants on the ground that they had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on by them to the consumers of the end products.3. The appellants thereupon preferred a Writ Petition in the High Court but the High Court also rejected the Writ Petition on the same ground, namely, that according to the finding re corded by the Central Government the appellants had not been able to establish fully and clearly that the incidence of higher sugar price was not passed on to the consumers of the end products and since this was a finding of fact base on evaluation of the material and evidence produced by the appellants before the competent authority, the High Court would not be justified in interfering with the order of the Central Government. The appellants thereupon preferred the present appeal with special leave obtained from this Court.4. The main point of controversy between the parties centres round the true interpretation of S. 6 Sub-section (1) of the Equalisation Fund Act. This provision lays down as a condition precedent to its applicability that the excess realisation made by the manufacturer of sugar should have been credited to the Fund. Now, the application made by the appellants in from IV stated in so many terms that the amount in question had been de posited by the Registrar of the High Court in terms of the Levy Sugar Price Equalisation Fund Rules, 1972, through the Chief Pay &Accounts Officer, Govt. Of India, Ministry of Agriculture &Irrigation, Department of Food, New Delhi. This statement was not at any time disputed on behalf of the Central Government either in the order made by the Central Government rejecting the claim of the appellants or in the proceedings before the High Court. It is indisputable that a sum of Rs. 2268 1.88 representing the excess realisation made from the appellants by K.M. Sugar Mills Limited was credited to the Fund by the Registrar of the High Court. And in any event, this must be presumed to have been done because the Equalisation Fund Act having been enacted for this purpose, the Registrar of the High Court would naturally be expected to carry out his obligation under the statute by depositing the amount of excess realisation recovered by him under the bank guarantee given by K.M. Sugar Mills Limited. There can, therefore, be no doubt that in terms of Section 6, Sub-section (1) the appellants were entitled to claim refund of the sum of Rs. 22681.88 from the Fund. The only question is whether the proviso to section 6, Sub-section (1) precluded the appellants from claiming refund of that amount. The proviso on its plain terms applied only where the party claiming refund of the amount of excess realisation is a wholesale or a retail dealer who has passed on the incidence of the excess over the controlled price of levy sugar to the retail dealer or to the consumer, as the case may be. The proviso obviously cannot apply to a case where a claim for refund has been made by a consumer of sugar from whom excess realisation has been made by the manufacturer of sugar. The appellants were admittedly consumers of sugar and not dealers in sugar and since they were not dealers in sugar, there could be no question of any incidence of excess being passed by them to the retail dealer or to the consumer.The learned counsel appearing on behalf of the respondent contended that the excess over the controlled or fair price of levy sugar must have been passed on by the appellants to the consumer when they sold the manufactured products to them, because the higher price paid by them for the sugar purchased from K.M. Sugar Mills Limited must have been taken into account by them in fixing the price of the manufactured products. This may be so or may not be so. It is not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6, Sub-section (1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where a dealer-whether whole sale or retail-sells sugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Sub- section (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum of Fund.5
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The only question is whether the proviso to section 6, Sub-section (1) precluded the appellants from claiming refund of that amount.The proviso on its plain terms applied only where the party claiming refund of the amount of excess realisation is a wholesale or a retail dealer who has passed on the incidence of the excess over the controlled price of levy sugar to the retail dealer or to the consumer, as the case may be. The proviso obviously cannot apply to a case where a claim for refund has been made by a consumer of sugar from whom excess realisation has been made by the manufacturer of sugar. The appellants were admittedly consumers of sugar and not dealers in sugar and since they were not dealers in sugar, there could be no question of any incidence of excess being passed by them to the retail dealer or to thelearned counsel appearing on behalf of the respondent contended that the excess over the controlled or fair price of levy sugar must have been passed on by the appellants to the consumer when they sold the manufactured products to them, because the higher price paid by them for the sugar purchased from K.M. Sugar Mills Limited must have been taken into account by them in fixing the price of the manufactured products.This may be so or may not be so. It is not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6, Sub-section (1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where a dealer-whether whole sale or retail-sells sugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Sub- section (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum ofis not necessary for us to examine this question because it is irrelevant on the terms of the proviso to Section 6,(1). That proviso deals with a situation where a wholesale or retail dealer passes on the incidence of excess over the controlled or fair price of levy sugar to a retail dealer or consumer, who purchases such sugar. It contemplates a case where awhole sale orsugar to a retail dealer or consumer as the case may be and not where a person sells a manufactured product containing sugar as one of its ingredients, we have, therefore, no doubt that the proviso to Section 6, Subsection (1) was not attracted in the case of the appellants and, consequently, the appellants were entitled to claim refund of the sum of the Rs. 22681.88 from the sum of
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SHAMITA SINGHA & ANR Vs. RASHMI AHLUWALIA & ANR. | as Plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was Plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra v. Aprajita and Ors. has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed Under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed. 5. In Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004) 3 SCC 85 , this Court has broadly laid down the guideline to be followed while dealing with the question of transfer of suit Under Section 25 of the Code. In that case, parties were substantially the same in two suits. The disputes arose out of same set of transactions. The cause of action of the suit alleged by one party was its ground of defence in the other suit. This Court found that the same set of evidence would be needed in both the suits. In such circumstances, this Court opined that the two suits ought not to be tried separately. 6. In the facts of this case, the outcome of the Probate proceeding in my opinion would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for. Of course, grant of Letters of Administration, if ordered, per se would not determine the title of the testator in the assets scheduled to the Testamentary Petition. I find from the joint affidavit of the Respondents herein filed in support of the Chamber Summons taken out by them in the aforesaid Testamentary Petition that they are contending the Will to be a forged one. In the same affidavit, the deponent of which is Rashmi Ahluwalia, it has also been pleaded that during the period of her marriage with the deceased, they had purchased various properties together. 7. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the Petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The Respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and Plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the Petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu v. Lakhbir Singh and Ors. [(2005) 12 SCC 503] , Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second Defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised. 8. Ms. Mishra has argued that the suit for partition having been instituted before the Testamentary Petition, her clients suit must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. It is also her submission that major portion of the assets of the deceased lie in Delhi. A petition for transfer Under Section 25 of the Code, however, is decided on consideration of the ends of justice. The First past the post is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the Respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The Plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court. The Petitioners claim that the Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai. Copies of these affidavits appear at pages 39 and 41 of the paper book filed in connection with the Transfer Petition. These are also factors which I have considered in forming my opinion in favour of transfer of the suit. | 1[ds]In another decision, Binapani Kar Chowdhury v. Sri Satyabrata Basu and Anr.(2006) 10 SCC 442 the question involved was as to whether a legal representative could prosecute a civil suit filed by the Testator during his lifetime for recovery of possession against third party. The legal representative in that case wanted to be substituted as Plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was Plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra v. Aprajita and Ors. has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed Under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed.6. In the facts of this case, the outcome of the Probate proceeding in my opinion would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for. Of course, grant of Letters of Administration, if ordered, per se would not determine the title of the testator in the assets scheduled to the Testamentary Petition. I find from the joint affidavit of the Respondents herein filed in support of the Chamber Summons taken out by them in the aforesaid Testamentary Petition that they are contending the Will to be a forged one. In the same affidavit, the deponent of which is Rashmi Ahluwalia, it has also been pleaded that during the period of her marriage with the deceased, they had purchased various properties together.7. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the Petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The Respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and Plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the Petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu v. Lakhbir Singh and Ors. [(2005) 12 SCC 503] , Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second Defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised.A petition for transfer Under Section 25 of the Code, however, is decided on consideration of the ends of justice. The First past the post is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the Respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The Plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court.The Petitioners claim that the Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai. Copies of these affidavits appear at pages 39 and 41 of the paper book filed in connection with the Transfer Petition. These are also factors which I have considered in forming my opinion in favour of transfer of the suit. | 1 | 1,955 | 973 | ### 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:
as Plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was Plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra v. Aprajita and Ors. has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed Under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed. 5. In Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004) 3 SCC 85 , this Court has broadly laid down the guideline to be followed while dealing with the question of transfer of suit Under Section 25 of the Code. In that case, parties were substantially the same in two suits. The disputes arose out of same set of transactions. The cause of action of the suit alleged by one party was its ground of defence in the other suit. This Court found that the same set of evidence would be needed in both the suits. In such circumstances, this Court opined that the two suits ought not to be tried separately. 6. In the facts of this case, the outcome of the Probate proceeding in my opinion would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for. Of course, grant of Letters of Administration, if ordered, per se would not determine the title of the testator in the assets scheduled to the Testamentary Petition. I find from the joint affidavit of the Respondents herein filed in support of the Chamber Summons taken out by them in the aforesaid Testamentary Petition that they are contending the Will to be a forged one. In the same affidavit, the deponent of which is Rashmi Ahluwalia, it has also been pleaded that during the period of her marriage with the deceased, they had purchased various properties together. 7. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the Petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The Respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and Plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the Petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu v. Lakhbir Singh and Ors. [(2005) 12 SCC 503] , Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second Defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised. 8. Ms. Mishra has argued that the suit for partition having been instituted before the Testamentary Petition, her clients suit must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. It is also her submission that major portion of the assets of the deceased lie in Delhi. A petition for transfer Under Section 25 of the Code, however, is decided on consideration of the ends of justice. The First past the post is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the Respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The Plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court. The Petitioners claim that the Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai. Copies of these affidavits appear at pages 39 and 41 of the paper book filed in connection with the Transfer Petition. These are also factors which I have considered in forming my opinion in favour of transfer of the suit.
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### Explanation:
In another decision, Binapani Kar Chowdhury v. Sri Satyabrata Basu and Anr.(2006) 10 SCC 442 the question involved was as to whether a legal representative could prosecute a civil suit filed by the Testator during his lifetime for recovery of possession against third party. The legal representative in that case wanted to be substituted as Plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was Plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra v. Aprajita and Ors. has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed Under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed.6. In the facts of this case, the outcome of the Probate proceeding in my opinion would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for. Of course, grant of Letters of Administration, if ordered, per se would not determine the title of the testator in the assets scheduled to the Testamentary Petition. I find from the joint affidavit of the Respondents herein filed in support of the Chamber Summons taken out by them in the aforesaid Testamentary Petition that they are contending the Will to be a forged one. In the same affidavit, the deponent of which is Rashmi Ahluwalia, it has also been pleaded that during the period of her marriage with the deceased, they had purchased various properties together.7. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the Petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The Respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and Plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the Petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu v. Lakhbir Singh and Ors. [(2005) 12 SCC 503] , Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second Defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised.A petition for transfer Under Section 25 of the Code, however, is decided on consideration of the ends of justice. The First past the post is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the Respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The Plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court.The Petitioners claim that the Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai. Copies of these affidavits appear at pages 39 and 41 of the paper book filed in connection with the Transfer Petition. These are also factors which I have considered in forming my opinion in favour of transfer of the suit.
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